AKS Investments Pty Ltd & Anor v Queensland Police Service & Anor; AKS Investments Pty Ltd & Ors v Queensland Police Service & Anor [2018] QSC 4

SUPREME COURT OF QUEENSLAND CITATION: AKS Investments Pty Ltd & Anor v Queensland Police Service & Anor; AKS Investments Pty Ltd & Ors v Queensland Police Service & Anor [2018] QSC 4 PARTIES: In SC No 1480 of 2015: AKS INVESTMENT PTY LTD as trustee and in its own right ACN 078 821 173 (first applicant) ANTHONY KEVIN SMITH (second applicant) v QUEENSLAND POLICE SERVICE (first respondent) REGISTRAR OF THE BRISBANE MAGISTRATES COURT (second respondent) In SC No 3096 of 2015: AKS INVESTMENT PTY LTD as trustee and in its own right ACN 078 821 173 (first applicant) ANTHONY KEVIN SMITH (second applicant) MICHAEL JOHN FEATHERSTONE (third applicant) PHOENIX GLOBAL PTY LTD (fourth applicant) v QUEENSLAND POLICE SERVICE (first respondent) CRIME AND CORRUPTION COMMISSION (second respondent) FILE NOS: SC No 1480 of 2015 SC No 3096 of 2015 DIVISION: Trial Division PROCEEDING: Trial ORIGINATING COURT: Supreme Court at Brisbane DELIVERED ON: 25 January 2018 DELIVERED AT: Brisbane HEARING DATE: 17 and 18 October 2016; supplementary submissions on behalf of the Crime and Corruption Commission received on 3 October 2017; supplementary submissions on behalf of the -- 1 of 41 -- 2 Queensland Police Service received on 3 October 2017; supplementary submissions on behalf of AKS Investments Pty Ltd, Mr Smith, Mr Featherstone and Phoenix Global Pty Ltd received on 3 October 2017 JUDGE: Burns J ORDER: The parties are directed to bring in minutes of order to reflect these reasons CATCHWORDS: CRIMINAL PROCEDURE – OBTAINING CRIMINAL EVIDENCE – SEARCH WARRANTS – EXECUTION – SCOPE TO SEARCH PREMISES AND OBTAIN PROPERTY – where four separate search warrants were issued in the course of an investigation into alleged money laundering, fraud, attempted fraud, conspiracy to kidnap and attempting to pervert the course of justice – where each of the warrants were executed and the police seized a number of computers, external hard drives, USB devices, mobile telephones and documents – where the second and third applicants and another person were subsequently charged with attempting to pervert the course of justice, attempted fraud and retaliation against a witness – whether the search warrants were lawfully executed – whether police only have to reasonably suspect that an item of evidence found at the premises fits the relevant description in the warrant – whether the property seized met the description of the warrant EVIDENCE – EXCLUSION ON THE GROUNDS OF LEGAL PROFESSIONAL PRIVILEGE – IMPLIED WAIVER – where legal professional privilege was claimed in relation to a number of the documents obtained in the course of the execution of the warrants – whether legal professional privilege attached to some of the material seized – whether legal professional privilege is excluded because the communications were made in furtherance of an illegal or fraudulent purpose Criminal Code 1899 (Qld), s 119B, s 140, s 408C, 408C(1)(c), s 541 Criminal Proceeds Confiscation Act 2002 (Qld), s 250 Environmental Protection Act 1994 (Qld), s 456(4), s 461(1), s 461(3), s 461(3)(a), s 461(3) (b)(i), s 461(3)(b)(ii) Police Powers and Responsibilities Act 2000 (Qld), s 150(1), s 150(3), s 150(4), s 150(5), s 150AA, s 151, s 153, s 154, 156, s 157, s 157(1)(h), s 196, s 197 Serious and Organised Crime Legislation Amendment Act 2016 (Qld) Attorney-General (NT) v Kearney (1985) 158 CLR 500, cited -- 2 of 41 -- 3 AKS Investments Pty Ltd & Anor v National Australia Bank & Anor [2012] QSC 223, cited AKS Investments Pty Ltd v Gazal [2015] QSC 247, cited Allitt v Sullivan [1988] VR 621, cited Archer Capital 4A Pty Ltd v Sage Group PLC (No. 2) (2013) 306 ALR 384, cited Attorney-General (NT) v Maurice (1986) 161 CLR 475, cited Australian Rugby Union v Hospitality Group (1999) 165 ALR 253, cited AWB Limited v Honourable Terence Rhoderic Hudson Cole (No 5) (2006) 155 FCR 30, cited Baker v Campbell (1983) 153 CLR 52, cited Bartlett v Weir & ors (1994) 72 A Crim R 511, cited Caratti v Commissioner of the Australian Federal Police (No 2) [2016] FCA 1132, cited Carter v Managing Partner, Northmore Hale Davy & Leake (1995) 183 CLR 121, cited Chief Executive Administering the Environmental Protection Act 1994 & Anor v Linc Energy Ltd [2016] 2 Qd R 66, followed Coco v R (1994) 179 CLR 427, cited Commissioner of Australian Federal Police v Propend Finance Pty Ltd (1997) 188 CLR 501, cited Commissioner of Police v Nirta [2002] 1 Qd R 364, cited Commissioner of Taxation v Citibank Ltd (1989) 20 FCR 403, cited Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission (2002) 213 CLR 543, cited Dubai Aluminium Co Ltd v Al Alwai [1999] 1 WLR 1964, cited Dunesky v Elder (1994) 54 FCR 540, cited Esso Australia Resources Ltd v Federal Commissioner of Taxation (1999) 201 CLR 49 at [35], [61]-[62] Expense Reduction Analysts Group Pty Ltd & Ors v Armstrong Strategic Management and Marketing Pty Ltd & Ors (2013) 250 CLR 303, cited Farrow Mortgage Services Pty Ltd (in liq) v Webb (1996) 39 NSWLR 601, cited George v Rockett (1990) 170 CLR 104, cited Grant v Downs (1976) 135 CLR 674, cited International Entertainment (Aust) Pty Ltd and Anor v Churchill and Ors [2003] QSC 247, cited Island Way Pty Ltd v Redmond [1991] 1 Qd R 431, cited Kuwait Airways Corpn v Iraqi Airways Co (No 6) [2005] 1 WLR 2734, cited Linc Energy Ltd v Chief Executive Administering the Environmental Protection Act 1994 [2015] 1 Qd R 1, discussed Mann v Carnell (1999) 201 CLR 1, cited -- 3 of 41 -- 4 Mercantile Mutual Custodians Pty Ltd v Village/Nine Network Restaurants & Bars Pty Ltd [2001] 1 Qd R 276 at 287-288, cited Nine Films and Television Pty Ltd v Ninox Television Ltd (2005) 65 IPR 442, cited Osland v Secretary Department of Justice (2008) 234 CLR 275, cited Public Transport Authority of WA v Leighton Contractors (2007) 242 ALR 181, cited R v BBS [2009] QCA 205, cited R v Cox and Railton (1884) 14 QBD 153, cited R v Dobbs v Ward & Anor [2002] QSC 109, cited R v Dunwoody (2004) 212 ALR 103, cited R v P & Anor [2016] QSC 49, cited R v Versac [2011] QCA 318, cited Russell v Jackson (1851) 9 Hare 387, cited Saunders v Commissioner Australian Federal Police (1998) 160 ALR 469, cited Sharp v Deputy Commissioner of Taxation (NSW) & Ors (1988) 86 ALR 77, cited The Queensland Local Government Superannuation Board v Allen [2016] QCA 325, cited TLC Consulting Services Pty Ltd v White [2003] QCA 131, cited Waterford v The Commonwealth (1987) 163 CLR 54, cited Williams v Keelty (2001) 111 FCR 175, cited COUNSEL: In SC No 1480 of 2015: M Byrne QC, with P Tucker, for the applicants J Horton QC, with P McCafferty, for the first respondent In SC No 3096 of 2015: M Byrne QC, with P Tucker, for the first and second applicants M Copley QC for the third and fourth applicants J Horton QC, with P McCafferty, for the first respondent R Traves QC, with B Power, for the second respondent SOLICITORS: In SC No 1480 of 2015: Peter Shields Lawyers for the applicants Queensland Police Service Legal Unit for the first respondent In SC No 3096 of 2015: Peter Shields Lawyers for the applicants Queensland Police Service Legal Unit for the first respondent Crime and Corruption Commission for the second respondent [1] This is a case about four search warrants issued under the Police Powers and Responsibilities Act 2000 (Qld). -- 4 of 41 -- 5 The applications [2] There are two applications before the court:1 (a) by originating application in proceeding BS 1480 of 2015 filed on 12 February 2015, AKS Investments Pty Ltd and its managing director, Anthony Kevin Smith, seek the following relief against the Queensland Police Service:2 (i) a declaration that “legal professional privilege attaches to all documents obtained upon the execution, or otherwise in consequence, of” a search warrant dated 17 December 2014 and executed on 19 December 2014 upon the offices of their then solicitors, Merthyr Law, in the Brisbane CBD; (ii) an injunction restraining the QPS from “inspecting, copying or utilizing in any way” or “seeking to inspect, copy or utilize in any way” any of the seized documents; (iii) a mandatory injunction for the return of the seized documents “to the offices of Merthyr Law”; and (iv) costs; (b) by amended originating application in proceeding BS 3096 of 2015 filed on 11 September 2015, AKS, Smith and two additional applicants, Phoenix Global Pty Ltd and its principal, Michael John Featherstone, seek the following relief against the QPS as well as the Crime and Corruption Commission: (i) a declaration that AKS and Smith (or either of them) are “entitled to claim and maintain, and have claimed and maintained, legal professional privilege in respect of any documents created or communicated by, to or through any of the applicants, for the purposes of” AKS and Smith (or either of them) “obtaining legal advice, or for the purposes of actual or reasonably anticipated legal proceedings” that were obtained upon the execution of: A. a search warrant dated 27 March 2014 and executed on 28 March 2014 upon Phoenix Global’s business premises in Southport; B. a search warrant dated 16 September 2014 and executed on 18 September 2014 upon Featherstone’s residence in Upper Coomera; and C. a search warrant dated 17 December 2014 and executed on 19 December 2014 upon Phoenix Global’s business premises; (ii) a declaration that each of these search warrants was executed unlawfully; (iii) an injunction restraining the QPS and the Commission from “inspecting, copying or utilizing” or “seeking to inspect, copy or utilize” any of the seized documents; (iv) a mandatory injunction for the return of the seized documents “to their lawful owner” and for the “destruction of any copy of any of the documents in the possession or control” of the respondents; and (v) costs. 1 On 15 June 2016, Mullins J ordered that the applications be heard together. 2 No relief is sought against the second respondent, being the party described as “Registrar of the Brisbane Magistrates Court”. -- 5 of 41 -- 6 [3] It will be seen that four separate warrants are under consideration, each of which was executed in 2014: the First Warrant on 28 March at Phoenix Global’s business premises; the Second Warrant on 18 September at Featherstone’s residence; the Third Warrant on 19 December at Phoenix Global’s business premises; and the Fourth Warrant on the same day at the offices of Merthyr Law, the solicitors then acting for AKS and Smith. [4] The warrants were issued in the course of what was, initially, an investigation into alleged money laundering by Featherstone. Over time, the investigation broadened to include allegations of fraud, attempted fraud, conspiracy to kidnap and attempting to pervert the course of justice in relation to each of which Smith and AKS (along with Featherstone) came under suspicion. [5] The primary issues before the court are whether the search warrants were lawfully executed and whether legal professional privilege attaches to some of the material that was seized. Factual and procedural history [6] It is necessary to set out some of the background to the issue and execution of the warrants, as well as the investigatory context in which each occurred. The National Australia Bank litigation [7] In 2009, AKS commenced a proceeding against the National Australia Bank and one of its employees, Adam Gazal.3 Gazal was the relationship manager assigned by the NAB to AKS and Smith. AKS alleged that certain actionable representations had been made by the NAB (via Gazal) to AKS (via Smith) in relation to a credit facility and, in particular, that Gazal had informed Smith that a facility with a $20 million limit would be, and had been, established. The NAB and Gazal contended that the limit under the relevant facility was $10 million and that AKS Investments (and Smith) knew that. AKS claimed to have suffered loss in consequence of the representations, maintaining that it held onto shares that it would have sold had it known that the credit facility was only to a limit of $10 million. [8] The trial came on before Applegarth J in March and April 2012. AKS’s case largely rested on the credibility of the evidence given by Gazal and Smith. On 21 August 2012, his Honour dismissed the claim with costs4 and, in the course of doing so, made a number of adverse credit findings in respect of Smith.5 Those findings included that “in [Smith’s] dealings with the [NAB] he was prepared to resort to untruths to get his way and secure an advantage”6 and that he had contrived evidence, made false statements and backdated a transfer of his property. In contrast to the findings made with respect to Smith, his Honour found Gazal to be a “very impressive witness”, a “reliable historian of events and conversations” and one who “did not seek to embellish or exaggerate”.7 Amongst the evidence rejected by his Honour was a claim made by Smith that Gazal had confessed to wrongdoing in a conversation that took place on 12 March 2008. His Honour found that 3 Claim No 8242 of 2009. 4 AKS Investments Pty Ltd & Anor v National Australia Bank & Anor [2012] QSC 223. 5 Ibid, [113]-[116] and [125]-128]. 6 Ibid, [126]. 7 Ibid, [130] and [131]. -- 6 of 41 -- 7 no such conversation took place.8 [9] On 18 October 2012, an appeal against the judgment at first instance was filed. It was dismissed by consent on 21 November 2012 after AKS received advice from senior counsel to the effect that its prospects of success were poor in the absence of fresh evidence demonstrating that Gazal had given untruthful testimony at the trial.9 Gazal [10] Prior to the dismissal of the appeal, Featherstone, a private investigator operating through his company, Phoenix Global, as well as Andrew James Crook, a public relations consultant were retained on behalf of AKS and Smith. In due course, Gazal was contacted by Crook and made to believe that a lucrative employment opportunity existed with one of Crook’s clients. There was an initial meeting between Gazal and Crook in Melbourne on 28 November 2012. Subsequent email and other communications between the pair over the course of the next month led to Gazal travelling to Singapore and, on 26 January 2013, to a resort situated on the island of Batam in Indonesia. There, Gazal was confronted by Smith in the presence of Featherstone. An audio-visual recording of at least part of that exchange was produced in which Gazal is said to have recanted key aspects of the evidence he gave at the trial. [11] According to a complaint Gazal later made to the QPS, the statements he made in the presence of Smith and Featherstone were made under duress and threats of harm. After returning to Singapore, he contacted the Australian Embassy, his own lawyers and representatives of the NAB. On 22 July 2013, he provided a witness statement to the NAB that was 119 pages in length with 56 documentary annexures. A copy of that statement was subsequently forwarded by the NAB to the QPS and an investigation ensued. The QPS/Commission investigation into money laundering and fraud [12] In February 2014, the QPS commenced an operation for the purpose of investigating what is described in the material before the court as “cold call investment fraud”10 as well as suspected money laundering activities. It was known as “Operation Lima Violin”. The operation had a focus on the activities of persons on the Gold Coast whom, it appears, had been under investigation since at least December 2013. On 18 July 2014, a major crime investigation was commenced by the Commission into essentially the same subject matter and then continued in tandem with the QPS. The joint task force operation became known as “Lima Violin II”. Neither the investigation nor the operation – whether as originally constituted by the QPS or as later conducted in conjunction with the Commission – had anything at all to do with Smith or AKS, but Featherstone and Phoenix Global were targets.11 [13] As to that, Det Sgt Karen Martin was, from 18 December 2013, one of the principal investigating officers under the original QPS investigation and operation and she continued in that capacity under the joint taskforce operation. DS Martin swore two 8 Ibid, [113]-[116], [128]. 9 Affidavit of Steven John Grant filed in BS 3096 of 2015 on 10 October 2016, par 3. 10 Operation Lima Violin. See first affidavit of Karen Martin filed in BS 3096 of 2015 on 16 December 2015, par 5. 11 Martin 1 (3096/15), par 6. Second affidavit of Karen Martin filed in BS 3096 of 2015 on 10 October 2016, par 6. -- 7 of 41 -- 8 affidavits in response to the subject applications, and was cross-examined at the hearing. In the second of her two affidavits, she deposed: “I had been involved in the investigation into the cold call investment fraud since 18 December 2013. Based on my involvement in the investigation, and at the date of the execution of the [First Warrant], I can say that the nature of the offence suspected was, in broad terms, as follows. Featherstone through Phoenix Global Investigations was suspected of being involved in and being a facilitator of the laundering of tainted money from cold call investment fraud companies. By a ‘facilitator’, I mean Featherstone was [the] person providing services to the cold call investment fraud companies which enabled then to mask the true beneficiaries of the tainted funds; he set up companies, virtual offices and bank accounts with dummy directors to hide where companies were operating from. He was instrumental in filtering the money through trusts and he formulated the ‘business plan’ of how the cold call investment fraud companies could operate without fear of interference from legislative authorities. The premises the subject of the [First Warrant] were the business premises of Phoenix Global Investigations. Featherstone’s mode of operation was suspected of occurring in the following way. A company would be set up. The company would ring people and persuade them to invest in various schemes. The schemes in which Featherstone was suspected of being involved included ‘lay- trading’, which is a scheme relating to horse races, marketed as a proper investment trading scheme. Another scheme in which it was suspected Featherstone was involved was ‘sports arbitrage’, a scheme involving betting on sporting events. Again, the scheme would be presented to potential clients as a proper investment scheme. Representations would be made about the merits of the scheme including, sometimes, representations about guaranteed returns. The investor would invest in the scheme by purchasing from the calling company, for example, software or a licence to be involved in the scheme. In the case of the licence, the victims would be informed that they could use the licence to be involved in the company’s ‘systems’. In the end, the scheme would be a sham. It would not live up to the representations made in respect of it. Often the schemes were represented as having performance guarantees, which would not be honoured. Ultimately, the companies could not honour their obligations and would disappear. Company accounts would be emptied. The laundering was suspected of occurring by the disguising of the recipients of the funds from the clients by, for example, the use of dummy directors to set up accounts and the signing of blank cheques by dummy directors which could then be drawn to cash. Featherstone was also suspected of being the facilitator of the scheme, who encouraged and counselled his staff to find the dummy directors to facilitate the schemes. Featherstone as the principal of Phoenix Global Investigations was suspected of being responsible for the facilitation, coordination and hiding, disguising and dispersing of many millions of dollars of fraudulently obtained funds from the operations. I believed at the time execution of the warrant that Travis Burch was an employee of Phoenix Global Investigations, and his official title was private investigator. I knew that Travis [Burch] has been involved in recruiting and tasking dummy directors for the Cold Call Investment Fraud companies and has assisted them to open bank accounts. The victims would be unable to recover their investments. The premises the subject of the search warrant were the business premises of Phoenix Global Investigations. I knew that Featherstone was the Principal of that business. In relation to Phoenix Global Investigations, and in relation to those premises, I had been informed by one John Kane, who told me and I believed that he was a dummy director for several cold call companies and that he had got into that line of work through Michael Featherstone; that he had attended the business premises of Phoenix Global Investigations on numerous occasions and taken money there; that he had -- 8 of 41 -- 9 withdrawn money from one or more of the dummy company’s accounts; that he had signed documents at the premises including (in blank) ASIC documentation and undated letters of resignation as director. John Kane also told me and I believed that he had given 100 points of identification to one Zoei Keong, who was the finance manager at Phoenix Global. I believed that these ‘points’ could be used, for example, to facilitate the setting up of bank accounts, or to set up virtual offices, both of which could be used for the purposes of the cold call business. John Kane also and on or about 13 February 2014 had given to me a series of emails of which were received from or sent to people including, in particular, Michael Featherstone and his son Zack Featherstone. I believed that the emails related to the conduct of the cold call investment fraud business, including directions to John Kane to withdraw money from accounts, sign forms, including ASIC forms and lease documents, arrange other directors to sign blank cheques, collect cash to deposit into bank accounts, obtain banking tokens and ASIC corporate keys and deliver to Phoenix Global. Kane also told me and I believed that Michael Featherstone had ultimate control of all staff at his office and they would not act without his approval. Also, by the time of the execution of the warrant, a warrant had been executed on the premises of one David Browne who was the director of Pegasus Trader Pty Ltd and Pinnacle Trader Pty Ltd. I believed those companies were also involved in the cold call investment fraud business, because of the mode in which I believed they traded. For example, Browne had informed me and I believed that he had been directed by Zack Featherstone to sign paperwork to register companies and open bank accounts. Browne stated that he had no knowledge or understanding about what the companies did or what transactions were being undertaken in the bank accounts. I also had information from another cold call investment fraud offender that Michael Featherstone had arranged companies for him. I understood him to mean that Michael Featherstone had facilitated his establishment of a cold call scheme. He further stated that Michael Featherstone went from horse racing business to horse racing business selling his services to put the fires out. He stated that Featherstone knew what they were selling was as scam.”12 The First Warrant – 28 March 2014 – Phoenix Global’s business premises [14] As part of the initial QPS operation, DS Martin made application to a magistrate on 27 March 2014 for the issue of a search warrant under s 151 of the PPRA in respect of Phoenix Global’s business premises in Southport. On being satisfied that there were “reasonable grounds for suspecting warrant evidence or property is at” the premises, the magistrate issued the warrant on the same day.13 [15] It was issued in relation to one alleged offence on the part of Featherstone – money laundering pursuant to s 250 of the Criminal Proceeds Confiscation Act 2002 (Qld). It was stated in these terms: “That on divers dates between 29 July 2008 and 28 March 2014 at Gold Coast and elsewhere in the State of Queensland one Michael John Featherstone did knowingly engage in money laundering.”14 12 Martin 2 (3096/15), pars 6-12. And see affidavit of Mitchell John Castles filed in BS 3096 of 2015 on 11 October 2016, par 3. 13 Martin 1 (3096/15), ex KLM-1. 14 Ibid. -- 9 of 41 -- 10 [16] The warrant was directed to DS Martin “or all police officers of” the QPS. The power to, relevantly, seize “a thing found at the [premises], or on a person found at the [premises], that the police officer reasonably suspects may be warrant evidence or property to which the warrant relates” was expressly conferred. The “warrant evidence or property that may be seized under [the] search warrant” were specified to be: (a) “Documentation (including electronic documentation) relating to” 27 named corporations or businesses; (b) “Documentation (including electronic documentation) relating to” 16 named individuals; (c) “Any mobile telephone services, other communications devices and/or associated equipment and attachments including purchase documents, bills, packaging, SIM cards, handsets and/or any other item”; (d) “All digital storage media including hard drives, DVD’s, CD’s, digital backup tapes, USB thumb drives, memory sticks, mp3 players and any other removable media capable of storing electronic data”; (e) “All computers, including desktops, laptops, ‘Smart’ or multimedia mobile phones, digital cameras, personal data assistants (PDA’s) and game consoles or other computer peripherals capable of processing data, or having internet connectivity”; (f) “Any computer hardware or peripheral equipment necessary to gain access to the computer or data contained in any storage media”; and (g) “Any documentation that may contain passwords to access the computer or storage media”.15 [17] The warrant also embodied an order directed to “the person in possession of access information for a storage device in the person’s possession or to which the person has access” at the premises: “to give a police officer access to the storage device and the access information necessary for the police officer to be able to use a storage device to gain access to stored information that is accessible only by using the access information; and to allow a police officer given access to a storage device to [do] any of the following in relation to stored information stored on or accessible only by using the storage device o use the access information to gain access to the stored information; o examine the stored information to find out whether it may be evidence of the commission of an offence; o make a copy of any stored information that may be evidence of the commission of an offence, including by using another storage device.”16 [18] At 11.05 am the next day (28 March 2014), the warrant was executed by DS Martin at the business premises for Phoenix Global. She was assisted by Det Snr Sgt Mitch Castles, amongst several others. A number of employees of Phoenix Global were on the premises at the time, including an administrative assistant, Sharon Lovitt, and Travis Burch.17 15 Ibid. 16 Ibid. 17 The same employee as the man referred to in the extract from the second affidavit of DS Martin set out -- 10 of 41 -- 11 Featherstone was contacted by telephone and a copy of the warrant was transmitted to him using a facsimile machine. He did not attend the premises during the search although he had a brief telephone conversation with DS Martin during which he said, “I’ll tell my staff to fully cooperate and give you whatever you need”.18 He did not claim that anything at his premises might attract legal professional privilege, and nor did anyone else. The search (including the conversation with Featherstone) was the subject of an audio recording.19 [19] In total, 87 separate items were seized by police under the warrant,20 including two computers – one from Featherstone’s office and the other from Burch’s office – as well as two mobile telephones and a number of “hard copy documents”.21 A forensic computer expert assisting police also imaged a computer used by Lovitt. [20] After Operation Lima Violin II was commenced by the joint taskforce in July 2014, a copy of the imaged computer (Lovitt) was provided to the Commission along with “examination images” of the two computers (Featherstone and Burch) that had been seized. The Second Warrant – 18 September 2014 – Featherstone’s residence [21] As a step in the joint operation, application was made to a magistrate by Det Sgt Michael Muir on 16 September 2014 for the issue of a warrant under s 151 of the PPRA for the search of Featherstone’s residence in Upper Coomera. The magistrate was satisfied that there were “reasonable grounds for suspecting warrant evidence or property is at” Featherstone’s residence, and issued the warrant that day.22 [22] In the case of this warrant, it was issued in relation to four alleged offences – two of fraud pursuant to s 408C(1)(c) of the Criminal Code 1899 (Qld) and two of money laundering pursuant to s 250 of the Criminal Proceeds Confiscation Act. Of those alleged offences, two (one each of fraud and money laundering) were alleged to have been committed by Featherstone and the others were alleged to have been committed by his wife, Zoei Keong. They were specified in these terms: “That between 1 July 2008 and 16 September 2014 at Gold Coast and elsewhere in the State of Queensland one Michael John Featherstone dishonestly induced Jacqueline Schneider and others to deliver property namely a sum of money to any person. … That between 1 July 2008 and 16 September 2014 at Gold Coast and elsewhere in the State of Queensland one Zoei Charissa Keong dishonestly induced Jacqueline Schneider and others to deliver property namely a sum of money to any person. … That on divers dates between 1 July 2008 and 16 September 2014 at Gold Coast and above at [13]. 18 Martin 1 (3096/15), par 14. 19 First affidavit of Kristy Bell filed in BS 3096 of 2015 on 30 October 2015, exs KAB-01 to KAB-04. 20 See Martin 1 (3096/15), ex KLM-3 (list prepared by Det Snr Con Michelle Cavanagh of the property seized). 21 Martin 1 (3096/15), par 19. 22 Martin 1 (3096/15), ex KLM-4. -- 11 of 41 -- 12 elsewhere in the State of Queensland one Michael John Featherstone did knowingly engage in money laundering. That on divers dates between 1 July 2008 and 16 September 2014 at Gold Coast and elsewhere in the State of Queensland one Zoei Charissa Keong did knowingly engage in money laundering.”23 [23] Again, the warrant was directed to DS Muir “or all police officers of” the QPS and conferred power to, relevantly, seize “a thing found at the [premises], or on a person found at the [premises], that the police officer reasonably suspects may be warrant evidence or property to which the warrant relates”. The “warrant evidence or property that may be seized under [the] search warrant” were specified to be: (a) “Financial documentation including banking tokens, ATM cards, stored electronic records and printed paper records relating to” Phoenix Global and 34 other named corporations or businesses; (b) “Documents relating to personal bank accounts, trust accounts and any other financial holdings for” Featherstone, his wife (Zoei) and his son (Zach); and (c) “Mobile phone handsets and [SIM] cards relating to” two mobile telephone services in Featherstone’s name and one mobile telephone service in his wife’s name. [24] Again, the warrant contained an order directed to “the person in possession of access information for a storage device in the person’s possession or to which the person has access” at the premises in the same terms as those extracted above (at [17]).24 [25] At 7.42 am on 18 September 2014, the warrant was executed by DSS Castles at Featherstone’s residence. He was assisted by DS Martin and several others. Featherstone was at home with his young daughter. He drove her to school and, when he returned, the warrant was executed. At some point during the execution of the warrant, Featherstone’s wife returned home. [26] In addition to documents in paper form, five computers, an external hard drive, USB devices, computer storage discs and three mobile telephones were seized by police.25 No forensic images of the computers were taken “on site”, although that later occurred.26 The search was the subject of an audio recording.27 It does not appear that any claim to legal professional privilege was made with respect to any of these electronic devices, although the topic was raised by Featherstone in relation to some hard copy documents.28 The litigation to set aside the judgment of Applegarth J [27] I interpolate that, armed with the audio-visual recording made on 26 January 2013, Smith (either directly or through Merthyr Law) engaged in correspondence with the NAB (through its solicitors) in the first half of 2014 concerning it. This, it seems, was intended by Smith (or his solicitors) to persuade the NAB that Gazal had given false evidence at the trial, that the representations on which AKS’ litigated claim were based had indeed been made by Gazal and that a commercial resolution should be discussed. The NAB did 23 Ibid. 24 Ibid. 25 Martin 1 (3096/15), ex KLM-5 (Property receipt completed by DSS Castles). 26 Affidavit of Benjamin de Waard filed in BS 3096 of 2015 on 16 December 2015, par 9. 27 Bell 1 (3096/15), ex KAB-05 and ex KAB-06. 28 Bell 1 (3096/15), ex KAB-06, pp 33 – 34. -- 12 of 41 -- 13 not respond with great enthusiasm. [28] Eventually Smith was invited to attend an interview with the QPS, which invitation Smith accepted but on the condition that Gazal was also in attendance. That was, apparently, declined. Then, in July, the NAB’s solicitors invited Smith to commence any proceeding he chose to commence, and advised that they held instructions to accept service. [29] On 27 November 2014, AKS commenced proceeding BS 11443 of 2014 against Gazal in which it sought to set aside the judgment handed down by Applegarth J. By the statement of claim filed in support of that proceeding, AKS alleged that Gazal (as well as another person who was employed by the NAB and was a witness at the trial, Ryan Clarke) had given false evidence at the trial. In consequence, it was pleaded, the judgment could not stand. [30] On 19 March 2015, Gazal brought an application for summary judgment against AKS. That application was successful, with judgment being handed down on 28 August 2015.29 The QPS investigation into Gazal’s complaint [31] Prior to November 2014, the QPS commenced an investigation into the complaint made by Gazal. It became known as “Operation Mike Theory”. [32] On 6 November 2014, Det Sgt Nathan McIntosh became involved in the investigation, at which time he reviewed a number of documents including the statement provided by Gazal on 22 July 2013, a statement provided by Clarke and “computer records”30 including “emails and other documents”31 acquired as a result of the forensic examination of the “computer system”32 seized by police during the execution of the First Warrant. [33] In consequence of this review, DS McIntosh “formed the belief that sufficient evidence existed” to charge Smith, Featherstone and Crook with “attempting to pervert the course of justice, attempted fraud and retaliation against a witness”.33 Then, on 17 December 2014, he applied for an arrest warrant with respect to Smith and also made application for the issue of five separate search warrants under s 151 of the PPRA; one for Crook’s home in New Farm, one for Crook’s business premises in the CBD of Brisbane, one for Phoenix Global’s business premises in Southport (i.e., the Third Warrant), one for Featherstone’s home in Upper Coomera and one for the offices of Merthyr Law, also in the CBD (i.e., the Fourth Warrant).34 Of those, only the Third and Fourth Warrants need to be considered. The Third Warrant – 19 December – Phoenix Global’s business premises [34] As for the Third Warrant, the magistrate was satisfied that there were “reasonable grounds for suspecting warrant evidence or property is at” the premises of Phoenix Global, and issued the warrant on 17 December 2014.35 Four offences under the Criminal Code (Qld) were specified in the warrant, and each was alleged to have been committed by 29 AKS Investments Pty Ltd v Gazal [2015] QSC 247. 30 Affidavit of Nathan McIntosh filed in BS 3096 of 2015 on 18 December 2015, par 5. 31 Ibid, par 11. 32 Ibid, par 5. 33 Ibid, par 16. 34 McIntosh (3096/15), ex NJM-1. 35 Ibid. -- 13 of 41 -- 14 Featherstone, that is to say, one offence of conspiracy to commit a crime (kidnapping for ransom) pursuant to s 541; one offence of attempting to pervert the course of justice pursuant to s 140; one offence of attempted fraud pursuant to s 408C; and one offence of retaliation against, or intimidation of, a witness pursuant to s 119B. They were expressed as follows: “That between 17th day of September 2012 and 28th day of November 2014 at Brisbane and elsewhere in the State of Queensland one Michael John FEATHERSTONE conspired with another person namely Anthony Kevin SMITH and Andrew James CROOK to commit a crime namely kidnapping for ransom in any part of the world namely Indonesia which if done in Queensland would be a crime namely kidnapping for ransom which is an offence under the laws in force in Indonesia; … That between 17th day of September 2012 and the 28th day of November 2014 at Brisbane and elsewhere in the State of Queensland one Michael John FEATHERSTONE attempted by obtaining an admission of perjury by threats and then using that admission obtained under duress as support for a Supreme Court application to have a judgement set aside to pervert the course of justice; … That between 17th day of September 2012 and 28th day of November 2014 at Brisbane and elsewhere in the State of Queensland one Michael John FEATHERSTONE attempted to dishonestly gain an advantage for Anthony Kevin SMITH and the yield to Anthony Kevin SMITH from the dishonesty was of a value of more than $30,000 namely $460,000; … That between 17th day of September 2012 and the 28th day of November 2014 at Brisbane and elsewhere in the State of Queensland one Michael John FEATHERSTONE without reasonable cause threatened to cause detriment namely being charged with perjury resigning from his employment getting locked up in an Indonesian prison to one Adam Gregory GAZAL a witness in retaliation because of evidence given against the interests of Anthony Kevin SMITH lawfully done by one Adam Gregory' GAZAL in a judicial proceeding namely a civil Queensland Supreme Court trial.”36 [35] The warrant was directed to DS McIntosh “or all police officers of” the QPS and conferred power to, relevantly, seize “a thing found at the [premises], or on a person found at the [premises], that the police officer reasonably suspects may be warrant evidence or property to which the warrant relates”. The “warrant evidence or property that may be seized under [the] search warrant” were specified to be: (a) “Australian Passport in the name of Michael John FEATHERSTONE”; (b) “Documentation (including electronic documentation) relating to matters between Anthony SMITH, Michael FEATHERSTONE, the National Australia Bank, Adam GAZAL, AKS Investments as Trustee for the Smith Family Trust, AKS Investments as Trustee for the Geordie Smith Trust”; (c) “Documentation (including electronic documentation) relating to Supreme Court matter AKS Investments Pty Ltd & Anor v National Australia Bank & Anor [2012] 36 Ibid. -- 14 of 41 -- 15 QSC 223”; (d) “Documentation (including electronic documentation) relating to Supreme Court matter 11443/14 at Brisbane Supreme Court”; (e) “Any mobile telephone services, other communications devices and/or associated equipment and attachments including purchase documents, bills, packaging, SIM cards, handsets and/or any other item”; (f) “All digital storage media including hard drives, DVD’s, CD’s, digital backup tapes, USB thumb drives, memory sticks, mp3 players and any other removable media capable of storing electronic data’; and (g) “All computers, including desktops, laptops, ‘Smart’ or multimedia mobile phones, digital cameras, personal data assistants (PDA’s) and game consoles or other computer peripherals capable of processing data, or having internet connectivity. (h) Any computer hardware or peripheral equipment necessary to gain access to the computer or data contained in any digital storage media.” (i) “Any documentation that may contain passwords to access the computer or storage media.”37 [36] The warrant again contained an order directed to “the person in possession of access information for a storage device in the person’s possession or to which the person has access” at premises in the same terms as those extracted above (at [17]).38 [37] At 9.45 am on 19 December 2014, the warrant was executed by DS Martin and others at the business premises for Phoenix Global in the presence of Burch. Featherstone was not present, although his wife arrived at the premises part way through the search. The search was recorded.39 No claim to legal professional privilege in any documents or electronic devices was made. [38] In addition to hard copy documents, a number of electronic devices including three computers, two external hard drives, digital recording devices and mobile telephones were seized by police.40 The three computers were later forensically imaged by the QPS and made available to the Commission.41 The Fourth Warrant – 19 December – Merthyr Law [39] The Fourth Warrant was executed at about the same time (9.40 am) as the Third Warrant (9.45 am). As earlier mentioned, the Fourth Warrant had been issued on 17 December 2014. The issuing magistrate was satisfied that there were “reasonable grounds for suspecting warrant evidence or property is at” the premises of Merthyr Law.42 [40] The Fourth Warrant specified the same offences as had been alleged in the Third Warrant save that each was alleged to have been committed by Smith. They were expressed as follows: 37 Ibid. 38 Ibid. 39 Bell 1 (3096/15), ex KAB-11. 40 Martin 1 (3096/15), ex KLM-7 (List of property seized). 41 Affidavit of Benjamin de Waard filed in BS 3096 of 2015 on 16 December 2015, par 20. 42 McIntosh (3096/15), ex NJM-1. -- 15 of 41 -- 16 “That between 17th day of September 2012 and 28th day of November 2014 at Brisbane and elsewhere in the State of Queensland one Anthony Kevin SMITH conspired with another person namely Michael John FEATHERSTONE and Andrew James CROOK to commit a crime namely kidnapping for ransom in any part of the world namely Indonesia which if done in Queensland would be a crime namely kidnapping for ransom which is an offence under the laws in force in Indonesia; … That between 17th day of September 2012 and the 28th day of November 2014 at Brisbane and elsewhere in the State of Queensland one Anthony Kevin SMITH attempted by obtaining an admission of perjury by threats and then using that admission obtained under duress as support for a Supreme Court application to have a judgment set aside to pervert the course of justice; … That between 17th day of September 2012 and 28th day of November 2014 at Brisbane and elsewhere in the State of Queensland one Anthony Kevin SMITH attempted to dishonestly gain an advantage for himself and the yield to Anthony Kevin SMITH from the dishonesty was of a value of more than $30 000 namely $460,000; … That between 17th day of September 2012 and the 28th day of November 2014 at Brisbane and elsewhere in the State of Queensland one Anthony Kevin SMITH without reasonable cause threatened to cause detriment namely being charged with perjury resigning from his employment getting locked up in an Indonesian prison to one Adam Gregory GAZAL a witness in retaliation because of evidence given against the interests of Anthony Kevin SMITH lawfully done by one Adam Gregory GAZAL in a judicial proceeding namely a civil Queensland Supreme Court trial. [41] Again, the warrant was directed to DS McIntosh “or all police officers of” the QPS and conferred power to, relevantly, seize “a thing found at the [premises], or on a person found at the [premises], that the police officer reasonably suspects may be warrant evidence or property to which the warrant relates”. The “warrant evidence or property that may be seized under [the] search warrant” were specified to be: (a) “Any documentation (including electronic documentation) relating to records and or notes of personal and telephone attendances including any emails, texts and other file records regarding Anthony Kevin SMITH and / or any associated entity”; (b) “Any instructions and or court documents including any statements or affidavits or drafts of same (including electronic documentation) regarding Anthony Kevin SMITH and / or any associated entity”; (c) “Any documents (including electronic documentation) relating to Supreme Court matter AKS Investments Pty Ltd & Anor v National Australia Bank & Anor [2012] QSC 223”; and (d) “Any documentation (including electronic documentation) relating to Supreme Court matter 11443/14 filed at Brisbane Supreme Court.”43 [42] The warrant was executed by Det Snr Sgt Jason Gough at Merthyr Law in the presence 43 Ibid. -- 16 of 41 -- 17 of Steven Grant, the principal of Merthyr Law, and Peter Shields, the then principal of the firm which commenced acting for Smith in relation to the charges referred to below (at [45]). The execution of the search was recorded.44 [43] An extensive body of documents relating to the trial before Applegarth J, the subsequent appeal and the proceeding to set aside the judgment was seized. This included emails and other correspondence, file notes, telephone attendances, pleadings, reports, witness statements, transcripts and recordings. On behalf of Smith and AKS, Grant claimed privilege over the whole of the documents seized. They were then placed in approximately 30 boxes, sealed and transported to the registry of the Brisbane Magistrates Court where they are still held pending the outcome of these applications. Featherstone, Crook and Smith are charged [44] On the same day (19 December 2014), Featherstone and Crook were charged with attempting to pervert the course of justice, attempted fraud and retaliation against a witness. These charges were preferred in almost identical terms to the second, third and fourth charges set out in the Third and Fourth Warrants and extracted above (at [34] and [40]).45 [45] On 6 January 2015, Smith presented himself at the Headquarters for the QPS and was charged with the same offences. Originating Application No 1480 of 2015 – the Fourth Warrant [46] On 12 February 2015, the originating application in proceeding BS 1480 of 2015 was filed and directions were subsequently made providing for the inspection of the documents seized pursuant to the Fourth Warrant by the lawyers for AKS and Smith. [47] Discussions (by correspondence and otherwise) between the parties then led to the preparation of a schedule detailing 1,398 documents in relation to which legal professional privilege was claimed on behalf of AKS and Smith.46 The schedule also indicates the documents in relation to which privilege is disputed by the QPS and those where the description of the document was insufficient to allow the QPS to determine whether or not to dispute privilege. Further correspondence ensued which resulted in the solicitors for AKS and Smith advising that their clients no longer maintained privilege in respect of a number of documents47 and the QPS advising that it no longer disputed privilege in relation to a number of documents that had, until that point in time, been disputed.48 Originating Application No 3096 of 2015 – the First, Second and Third Warrants [48] After the commencement of proceeding No 1480 of 2015, the solicitor for Smith and Featherstone in relation to their criminal charges, Peter Shields, saw that evidence seized by police during the execution of the First and Second Warrants was referred to in the 44 Affidavit of Kristy Bell filed in BS 1480 of 2015 on 30 October 2015, ex KAB-01. 45 Affidavit of Peter Shields filed in BS 1480 of 2015 on 12 February 2015, ex PJS-1. 46 Second affidavit of Steven Grant filed in BS 1480 of 2015 on 4 April 2016, ex SJG-5. 47 Grant 2 (1480/15), ex SJG-06. 48 Grant 2 (1480/15), ex SJG-07. -- 17 of 41 -- 18 court brief (QP9) generated by DS McIntosh for the purposes of that prosecution.49 He became concerned that AKS, Smith, Featherstone and/or Phoenix Global might have valid claims to legal professional privilege over that evidence and, after taking instructions, wrote to the QPS to assert privilege “in respect of any documents obtained in the course of the execution of” the First, Second and Third Warrants.50 [49] After further correspondence passed between the parties, Shields was on 5 March 2015 provided with an electronic copy of some of the documents seized during the execution of the First and Second Warrants. On reviewing those documents, he formed the opinion that there were “plain and genuine claims [to] legal professional privilege” that could be advanced by AKS or Smith in relation to those documents.51 Accordingly, on 26 March 2015, the originating application in proceeding BS 3096 of 2015 was filed.52 [50] Directions were made by Douglas J on 2 April 2015, pursuant to which an electronic copy of all of the evidence seized pursuant to the First, Second and Third Warrants was provided by the Commission to the lawyers for the applicants. [51] In total, approximately 660,000 documents were seized under the warrants and copied to the applicants’ lawyers, of which there are about 75,000 unique documents.53 [52] As with the evidence seized under the Fourth Warrant, a schedule was prepared detailing the documents in relation to which legal professional privilege was claimed on behalf of AKS and Smith.54 Like the schedule of documents prepared with respect to proceeding No 1480 of 2015, the schedule indicates the documents where privilege is disputed by the QPS. Which claims to privilege are disputed? [53] To consider the claims to privilege, the court was provided at the hearing with a copy of each of the disputed documents.55 There were two volumes of documents for proceeding No 1480 of 2015 and one volume for proceeding No 3096 of 2015.56 When received, the disputed documents from both proceedings were sealed and marked as a confidential exhibit – Exhibit 5. The court was invited to inspect the documents.57 [54] In the written submissions of the parties most interested in the privilege question – AKS and Smith on the one hand and the QPS on the other – attempts were made to isolate the documents where privilege was disputed,58 but those attempts were not entirely successful.59 Be that as it may, it was necessary in any event for the court to examine each 49 First affidavit of Peter Shields filed in BS 3096 on 26 March 2015, ex PJS-1. 50 Shields 1 (3096/15), par 14 and ex PJS-8. 51 Ibid, par 19. 52 The Amended Originating Application was filed on 9 September 2015. 53 Shields 1 (3096/15), ex PJS-11. 54 Affidavit of Steven Grant filed in BS 3096 on 26 March 2015, ex SJG-1. 55 TT. 1-118 and 1-119. 56 Ibid. 57 Outline of submissions on behalf of AKS and Smith, pars 123 and 140; Outline of submissions on behalf of the QPS; par 12. 58 Outline of submissions on behalf of AKS and Smith, pars 114-122 and 125-139; Outline of submissions on behalf of the QPS; pars 14-21. 59 For example, in proceeding BS 1480 of 2015, documents 443, 453, 454, 464, 1042, 1048, 1059 and 1313 appear in Exhibit 5 as well as the schedule prepared by the parties (Grant 2 (1480/15), ex SJG-05), but have been overlooked in the submissions. Documents 992 and 996 are included in the submissions as documents -- 18 of 41 -- 19 of the documents comprising Exhibit 5 and to do so in the context of the affidavit material filed on the hearing of the applications. Having done so, the documents in relation to which privilege is disputed may be summarised as follows: (a) In proceeding No 1480 of 2015: (i) privilege is disputed in relation to 80 documents, as follows: (A) witness statements, draft witness statements, addendum witness statements or extracts from witness statements – documents 518, 828, 988, 991, 993, 994, 997, 999, 1002, 1007, 1009, 1012, 1014, 1016, 1018, 1020, 1040, 1041, 1042, 1043, 1052, 1053, 1060, 1061, 1062, 1063, 1064, 1065, 1105, 1127, 1128, 1134, 1214, 1338, 1343, 1344, 1345, 1346, 1347, 1362, 1365, 1366 and 1369; (B) emails between AKS and/or Smith, third parties and the solicitors for AKS and Smith – documents 867, 1001, 1003, 1004, 1010, 1027, 1029, 1030, 1031, 1039, 1044, 1045 and 1215; (C) emails between AKS and/or Smith and their solicitors – documents 995, 998, 1000, 1005, 1015, 1017, 1019, 1021, 1022, 1028 and 1032; (D) email chains between the solicitors and witnesses – documents 986, 987, 990, 1006, 1008, 1011, 1034, 1035, 1036 and 1038; and (E) files notes – documents 989, 1025 and 1026. (ii) there are a further 21 documents which the QPS assert are insufficiently described to determine whether or not to dispute privilege, as follows: (A) witness file notes – documents 882, 1059, 1070 and 1379; (B) handwritten file note – documents 1048, 1059 and 1372; (C) handwritten notes – documents 899, 903 and 904; (D) memoranda – documents 900 and 902; (E) witness summary – document 1033; (F) email annexure – document 1037; (G) transcript – document 1112; (H) Phoenix Global file notes – documents 1125, 1126, 1363 and 1364; (I) diary memorandum – document 1129; and (J) diary entry with handwritten notes – document 1337. (b) In proceeding No 3096 of 2015, privilege is disputed in relation to 35 documents, as follows: (i) emails between AKS and/or Smith applicants and a third party – documents 15, 18, 19, 20, 21, 24, 26, 27, 58, 92, 93 and 109; where privilege is disputed, but are noted on the schedule as documents where privilege is not disputed. Document 1216 is included in Exhibit 5, the schedule and the submissions as a disputed document, but that overlooks the concession later made by the QPS that privilege is no longer disputed in relation to it (Grant 2 (1480/15), ex SJG-07). Similarly, Exhibit 5 contains five other documents (documents 443, 453, 454, 464 and 1313) where the claim for privilege was abandoned on behalf of AKS and Smith (Grant 2 (1480/15), ex SJG-06). -- 19 of 41 -- 20 (ii) emails from third parties to AKS and/or Smith and/or their solicitors – documents 34, 57, 85, 168 and 206; (iii) letters and emails between AKS and/or Smith – documents 22, 45, 56 and 161; (iv) transcript of conversation between Smith, Featherstone and Gazal – document 42; (v) document – Gazal – draft resignation – document 43; (vi) due diligence criteria – document 25; (vii) progress report – Featherstone to Smith – document 94; and (viii) witness statements/drafts – documents 120, 122 (including email), 129 (including email), 130, 167 (including email), 174, 185 (including email), 190 (including email), 205 (including email) and 207 (including email). The issues for determination [55] By the terms of the relief sought in the originating applications, the applicants cast a wide net but, by the end of the hearing, the issues (including the relief sought) had narrowed somewhat. [56] It is therefore useful to summarise the respects in which the applications have been refined as well as the issues that are left to be decided. Issue of the warrants [57] By their written submissions, AKS and Smith attacked the issue of the warrants. They submitted that the particulars provided for the offences specified in each of the warrants were “so sparse as to provide no useful or useable boundaries as to what might constitute evidence relating to” those offences and that this rendered each warrant “akin to a general warrant, and invalid”.60 The point was made that, the “broader and less specific the description, the more difficult it will be to satisfy the requirement of reasonable grounds for [suspecting] that the thing answering the description will afford evidence of the commission of an offence”.61 AKS and Smith also submitted that the requirement in s 156(1)(b)(i) of the PPRA for the warrant to state “brief particulars of the offence for which the warrant is issued” had not been met. In response, the Commission submitted that the First and Second Warrants were not invalid.62 Likewise, the QPS advanced submissions to the same effect with respect to the Third Warrant.63 [58] At the hearing, AKS and Smith abandoned each of these arguments with the result that no challenge was maintained, by any of the applicants, in relation to the issue of any of the warrants.64 It is therefore unnecessary to consider this aspect of the matter any further. Execution of the warrants [59] Each of the applicants submitted in writing that the First, Second and Third Warrants had 60 Outline of Submissions on behalf of AKS and Smith, pars 23, 36, 45-47, 53-55. 61 Ibid, par 25. 62 Outline of Submissions on behalf of the Commission, pars 6-20. 63 Outline of Submissions on behalf of the QPS, par 4. 64 See TT. 1-21, 1-46, 2-20, 2-21. -- 20 of 41 -- 21 been executed unlawfully.65 In oral submissions, Mr Copley QC (for Featherstone and Phoenix Global) led that argument, with Mr Byrne QC (for AKS and Smith) content to rely on Mr Copley’s submissions.66 The argument boiled down to the proposition that scant, if any, regard was had by those executing the warrants to whether the material seized by them was in fact warrant evidence. The problem with that approach, if it was taken, was that the police could not know at the time when the warrants were executed whether the things seized fell within the terms of the warrant and, further, could not form the state of mind – a reasonable suspicion that the material “may be warrant evidence or property to which the warrant relates”67 – that, it was submitted, was otherwise necessary to lawfully exercise the seizure power under the PPRA. [60] There is no issue about the execution of the Fourth Warrant and, although the lawfulness of the execution of the First, Second and Third Warrants remained very much in issue, the challenge was eventually confined to the seizure of electronic storage devices such as computers, USB memory sticks, external hard drives, SIM cards, mobile telephones and the like.68 Other conduct during the searches [61] AKS and Smith submitted that “no reasonable or proper opportunity” was afforded to them to make claims to legal professional privilege in connection with the execution of the First, Second, and Third Warrants.69 An allied point was made on behalf of Featherstone and Phoenix Global that the execution of the First, Second and Third Warrants was unlawful because privileged documents were seized. [62] Neither argument was greatly developed in oral submissions, but it is still necessary to deal with them because, if either argument can be sustained, it may bear on the legality of the execution of the warrants. Derivative use [63] It was submitted in writing by AKS and Smith that the Third and Fourth Warrants were obtained by derivative use of documents that had been unlawfully seized in the course of the execution of the First and Second Warrants.70 A similar argument was advanced on behalf of Featherstone and Phoenix Global.71 However, because (in the end) no challenge was made to the issue of the Third or Fourth Warrants, Mr Copley QC did not pursue this argument,72 and Mr Byrne QC appeared to adopt the same position.73 It follows that, regardless of whether the First and/or Second Warrants are found to have been executed unlawfully, this point does not need to be determined in this proceeding. 65 Outline of Submissions on behalf of AKS and Smith, pars 31, 40, 52, 70(a), 89-95; Outline of Submissions on behalf of Featherstone and Phoenix Global, pars 27-35. 66 See TT. 1-3, 2-43. 67 PPRA, s 157(1)((h). 68 See TT. 1-45, 1-113 and 2-24. 69 Outline of Submissions on behalf of AKS and Smith, pars 27-29, 41, 48, 70(b), 96-103. 70 Outline of Submissions on behalf of AKS and Smith, pars 70(c). 71 Outline of Submissions on behalf of Featherstone and Phoenix Global, par 26. 72 Mr Copley QC did, however, leave it open to pursue that argument in the criminal proceedings: T. 2-42. 73 See T. 2-43. -- 21 of 41 -- 22 Legal professional privilege [64] AKS and Smith maintain that they are entitled to claim, and have claimed, legal professional privilege in respect of each of the disputed documents.74 In response, the QPS submitted that no privilege can subsist in relation to any of the disputed documents “because the documents were created in furtherance of an illegal or fraudulent purpose or [a] purpose which is contrary to the public interest”75 and that any claim that might have existed over the documents disputed in proceeding BS 3096 of 2015 (and listed above at [54]) has been waived.76 During the course of argument, the second of those two propositions – waiver – was abandoned.77 It is therefore only necessary to consider the first proposition. [65] Insofar as the claims made with respect to the documents seized under the First, Second and Third Warrants are concerned, the Commission “neither [accepted] nor [rejected] those claims and [indicated that it would] abide by the order of the court”.78 Unlawful execution? [66] I turn now to consider the first of the two primary issues to be determined – whether the seizure of the electronic devices during the execution of the First, Second and Third Warrants was lawful. [67] It has been observed at the highest level that the right of a person in possession of premises to exclude others is a fundamental common law right and, for this reason, “statutory authority to engage in what would otherwise be tortious conduct must be clearly expressed in unmistakable and unambiguous language”.79 In Queensland, Chapter 7 of the PPRA not only confers power on the courts to issue search warrants, it provides for the manner in which they must be executed and sets limits on the powers that may be exercised and strict compliance is required.80 [68] As the parties seeking declaratory and other relief regarding the execution of the First, Second and Third Warrants, the applicants bear the onus of proving that the seizure of particular property under one or more of those warrants was unlawful.81 The statutory provisions [69] In Part 1 of Chapter 7 of the PPRA, “warrant evidence or property” is defined to mean “the evidence or property mentioned in section 150(1) for which a warrant is issued under section 151”: s 150AA. Section 150(1) then provides that a police officer may apply for a search warrant to enter and search a place to, relevantly, “obtain evidence of the commission of an offence”: s 150(1)(a). Such an application must be sworn and state the grounds on which the warrant is sought: s 150(5). 74 Outline of Submissions on behalf of AKS and Smith, pars 70(d), 71(b). 75 Outline of Submissions on behalf of the QPS, pars 6(a), 22-104. 76 Outline of Submissions on behalf of the QPS, pars 6(b), 105-110. 77 T. 2-73. 78 Outline of Submissions on behalf of the Commission, par 58. 79 Coco v R (1994) 179 CLR 427, 435 - 436. 80 George v Rockett (1990) 170 CLR 104, 110 - 111; Dunesky v Elder (1994) 54 FCR 540, 552. 81 Caratti v Commissioner of the Australian Federal Police (No 2) [2016] FCA 1132, [357]-[359]. And see Williams v Keelty (2001) 111 FCR 175, [235]-[236]; R v Versac [2011] QCA 318, [31]. -- 22 of 41 -- 23 [70] Applications for the issue of a search warrant in relation to indictable offences are, as here, usually made to a magistrate: ss 150(3) and 150(4). The magistrate may only issue a search warrant “if satisfied there are reasonable grounds for suspecting the evidence or property mentioned in section 150(1)” is “at the place” or “is likely to be taken to the place within the next 72 hours”: s 151. When issuing a warrant, the magistrate may “order the person in possession of documents at the place to give to the police officer all documents of a type stated in the warrant”: s 153. [71] Section 154 assumed particular prominence in the arguments of the parties in this case. At the time when the subject warrants were taken out, s 154 was in these terms: “154 Order in search warrant about information necessary to access information stored electronically (1) If the issuer is a magistrate or a judge, the issuer may, in a search warrant order the person in possession of access information for a storage device in the person's possession or to which the person has access at the place— (a) to give a police officer access to the storage device and the access information necessary for the police officer to be able to use the storage device to gain access to stored information that is accessible only by using the access information; and (b) to allow a police officer given access to a storage device to do any of the following in relation to stored information stored on or accessible only by using the storage device— (i) use the access information to gain access to the stored information; (ii) examine the stored information to find out whether it may be evidence of the commission of an offence; (iii) make a copy of any stored information that may be evidence of the commission of an offence, including by using another storage device. (2) In this section— access information means information of any kind that it is necessary for a person to use to be able to access and read information stored electronically on a storage device. storage device means a device of any kind on which information may be stored electronically. stored information means information stored on a storage device.” [72] A search warrant must state a number of things (s 156),82 one of which is the “warrant 82 “156 What search warrant must state (1) A search warrant must state— (a) a police officer may exercise search warrant powers under the warrant; and (b) if the warrant is issued in relation to— (i) an offence—brief particulars of the offence for which the warrant is issued; or (ii) a forfeiture proceeding—the Act under which the forfeiture proceeding is authorised; or (iii) a confiscation related activity—brief particulars of the activity; or (iv) a vehicle that is or is to be impounded or immobilised under chapter 4, 4A or 22—brief -- 23 of 41 -- 24 evidence or property that may be seized under the warrant”: s 156(1)(c). [73] Section 157 prescribes the powers that a police officer may lawfully exercise under a search warrant: “157 Powers under search warrant (1) A police officer may lawfully exercise the following powers under a search warrant (search warrant powers)— (a) power to enter the place stated in the warrant (the relevant place) and to stay on it for the time reasonably necessary to exercise powers authorised under the warrant and this section; (b) power to pass over, through, along or under another place to enter the relevant place; (c) power to search the relevant place for anything sought under the warrant; (d) power to open anything in the relevant place that is locked; (e) power to detain anyone at the relevant place for the time reasonably necessary to find out if the person has anything sought under the warrant; (f) if the warrant relates to an offence and the police officer reasonably suspects a person on the relevant place has been involved in the commission of the offence, power to detain the person for the time taken to search the place; (g) power to dig up land; (h) power to seize a thing found at the relevant place, or on a person found at the relevant place, that the police officer reasonably suspects may be warrant evidence or property to which the warrant relates; (i) power to muster, hold and inspect any animal the police officer reasonably suspects may provide warrant evidence or property to which the warrant relates; (j) power to photograph anything the police officer reasonably suspects may provide warrant evidence or property to which the warrant relates, whether or not the thing is seized under the warrant; particulars of the authorisation to impound; or (v) criminal organisation control order property—brief details of the control order or registered corresponding control order under the Criminal Organisation Act 2009; and (c) the warrant evidence or property that may be seized under the warrant; and (d) if the warrant is to be executed at night, the hours when the place may be entered; and (e) the day and time the warrant ends. (2) If the warrant relates to an offence and the offence has been, is being, or may be committed in, on or in relation to a transport vehicle and involves the safety of the vehicle or anyone who may be in or on it, the warrant may also state that a police officer may search anyone or anything in or on or about to board, or to be put in or on, the vehicle. (3) If a magistrate or a judge makes an order under section 153 or 154, the warrant must also state that failure, without reasonable excuse, to comply with the order may be dealt with under the Criminal Code, section 205.” -- 24 of 41 -- 25 (k) power to remove wall or ceiling linings or floors of a building, or panels of a vehicle, to search for warrant evidence or property; (l) if the police officer is searching for stock—power to use any equipment, cut out camps, stockyards, dips, dams, ramps, troughs and other facilities on the place being searched that are reasonably needed to be used in the management of stock. (2) Also, a police officer has the following powers if authorised under a search warrant (also search warrant powers)— (a) power to search anyone found at the relevant place for anything sought under the warrant that can be concealed on the person; (b) power to do whichever of the following is authorised— (i) to search anyone or anything in or on or about to board, or be put in or on, a transport vehicle; (ii) to take a vehicle to, and search for evidence of the commission of an offence that may be concealed in a vehicle at, a place with appropriate facilities for searching the vehicle. (3) Power to do anything at the relevant place that may cause structural damage to a building, may be exercised only if the warrant— (a) authorises the exercise of the power; and (b) is issued by a Supreme Court judge.” [Emphasis added] [74] Lastly, s 196 is also relevant. It is contained in Part 6 of Chapter 7 of the PPRA: “196 Power to seize evidence generally (1) This section applies if a police officer lawfully enters a place, or is at a public place, and finds at the place a thing the officer reasonably suspects is evidence of the commission of an offence. (2) The police officer may seize the thing, whether or not as evidence under a warrant and, if the police officer is acting under a warrant, whether or not the offence is one in relation to which the warrant is issued. (3) Also, the police officer may photograph the thing seized or the place from which the thing was seized. (4) The police officer may stay on the place and re-enter it for the time reasonably necessary to remove the thing from the place.” [Emphasis added] [75] In order to “reasonably suspect” that a “thing” is evidence, that suspicion must be founded on “grounds that are reasonable in the circumstances”: Dictionary (Schedule 6). Accordingly, there must be facts sufficient to induce the required suspicion in the mind of a reasonable person; suspicion itself is a “state of conjecture or surmise where proof is lacking”.83 Consideration [76] It is necessary to commence with a consideration of what state of mind on the part of 83 R v Dobbs v Ward & Anor [2002] QSC 109, [19]. And see R v BBS [2009] QCA 205, [44]. -- 25 of 41 -- 26 those executing a warrant under the PPRA is required before a particular item of property may be lawfully seized. [77] As already touched on (at [59]), the applicants argued that those executing the First, Second and Third Warrants failed to turn their mind to whether the material seized by them was in fact warrant evidence. Indeed, AKS and Smith submitted in writing that the respondents had approached the execution of the warrants “from the standpoint that they are entitled to seize and, or alternatively, image every document stored electronically at the premises upon which the warrants were executed”84 and as though it was “not necessary that [they] make any, or any proper, attempt to inspect and consider the content of any electronically stored document before it could be seized or imaged”.85 Such an approach, they argued, was impermissible because they could not have formed the reasonable suspicion necessary to seize any of that material. This required, it was submitted, the formation of an opinion that the “electronic documents seized or imaged were related to” the offences endorsed on the respective warrants.86 Put another way, the applicants contended that those executing each warrant were not entitled to seize any electronic storage device unless they had first formed a reasonable suspicion that the device contained warrant evidence,87 that is to say, evidence of the commission of one or more of the offences nominated on the warrant. As an associated point, it was also submitted that “electronic document repositories cannot simply be copied on the basis of suspicion; rather, the material must be inspected and a proper opinion formed as to its relevance”.88 [78] Featherstone and Phoenix Global advanced similar arguments in writing,89 and then developed those arguments in the oral submissions made on their behalf by Mr Copley QC (and adopted for AKS and Smith by Mr Byrne QC). In particular, it was submitted that the challenge to the execution of the warrants was about the seizure of electronic storage devices “without looking at them until later”.90 It was significant, Mr Copley QC submitted, that those executing the warrants had the power under s 154 of the PPRA to access the information on those devices but chose not to do so because that suggests that the: “[D]ecision just to take the computers without looking was not based upon a reasonable suspicion about the computers.”91 [79] For the respondents, it was submitted that the warrants themselves authorised the seizure of electronic storage devices as “warrant evidence” and, as such, it was not necessary for those executing the warrants to form a reasonable suspicion that the property seized might afford evidence of the commission of an offence; on a proper construction of the PPRA, it was enough if the person executing the warrant reasonably suspected that the property seized met the description of the particular evidence that was authorised to be seized 84 Submissions on behalf of AKS and Smith, par 89(a). 85 Ibid, par 89(b). 86 Ibid, par 93. And see Submissions on behalf of AKS and Smith in response to the QPS, pars 2-9; Submissions on behalf of Featherstone and Phoenix Global, pars 27-34. 87 Submissions on behalf of Featherstone and Phoenix Global, par 33. 88 Ibid, par 95. And see TT. 2-29 to 2-31 (Mr Copley QC). 89 Submissions on behalf of Featherstone and Phoenix Global, pars 31-34. 90 TT. 1-45, 1-121, 91 T. 1-122 (Mr Copley QC). And see Reply Submissions on behalf of AKS and Smith in response to the QPS, par 7; TT. 2-32 to 2-38 (Mr Copley QC). -- 26 of 41 -- 27 under the relevant warrant.92 It was also submitted that, if a warrant authorises the seizure of a computer device and the device also contains irrelevant records, that circumstance cannot affect the legality of the seizure.93 Furthermore, in the case of the First and Second Warrants, the Commission submitted that there was, in any event, evidence that the relevant police officers had formed a reasonable suspicion that the property seized might afford evidence of the commission of an offence. [80] In support of the construction of the PPRA for which they contended, the respondents placed considerable reliance on the decision of the Court of Appeal in Chief Executive Administering the Environmental Protection Act 1994 & Anor v Linc Energy Ltd.94 [81] That case concerned the execution of two search warrants that had been issued by a magistrate pursuant to s 456 of the Environmental Protection Act 1994 (Qld). Under s 456(4), a warrant could be issued if the magistrate was satisfied that there were “reasonable grounds for suspecting … (a) there is a particular thing or activity … that may provide evidence of the commission of an offence against [the] Act; and (b) the evidence is, or may be within the next 7 days, at the place”. Both warrants stated that the magistrate was satisfied on the material provided to her that there were “reasonable grounds for suspecting that there is or may be within the next seven days a particular thing or activity (the evidence) at [the place], that may provide evidence of the commission of an offence of offences against” the EP Act. The warrants also included a non-exhaustive statement of the evidence for which they were issued. That was stated to consist of documents relating to three specified topics, including documents in the form of “computer printouts, computer records, printouts, photos, videos, handwritten notes, magnetic or electronic storage media, discs, tapes, memory sticks, hard drives, servers, notepads, laptops, handheld electronic media (capable of receiving and transmitting emails) and any other storage medium or mirror image of the above storage medium”. The warrants also summarised the seizure powers under the EP Act, that is to say, the power under s 461(1) to enter the place and “seize the evidence for which the warrant was issued” and the power under s 461(3) to “seize another thing if” the searcher “believes on reasonable grounds … (a) the thing is evidence of an offence against this Act; and (b) the seizure is necessary to prevent the thing being … (i) concealed, lost or destroyed; or (ii) used to commit, continue or repeat the offence”. During the course of executing the warrants, a number of items were seized including back-up tapes for computer-stored data, a hard drive disk and a storage device. [82] At first instance, the seizure was declared to be unlawful95 but, on appeal, the declaration was set aside. Gotterson JA (with whom Philippides JA96 and Martin J agreed) considered that the learned primary judge erred when in concluding that “a state of mind as to relevance to a prosecution for a relevant offence was necessary for a valid seizure”.97 His 92 Submissions on behalf of the QPS, pars 10-11; Submissions on behalf of the Commission, pars 24, 30-39. And see TT. 1-123 to 125, 2-25, 2-26, 2-44 to 2-50 (Mr Horton QC). 93 Submissions on behalf of the Commission, pars 35-39. And see TT. 2-21 to 23, 2-26 to 27 (Mr Copley QC); TT. 2-55 to 2-57 (Mr Traves QC). 94 [2016] 2 Qd R 66. 95 Linc Energy Ltd v Chief Executive Administering the Environmental Protection Act 1994 [2015] 1 Qd R 1. 96 Her Honour delivered separate reasons but agreed with the orders proposed by Gotterson JA and the reasons set out in his Honour’s judgment: Chief Executive Administering the Environmental Protection Act 1994 & Anor v Linc Energy Ltd, ibid, [44]. 97 Chief Executive Administering the Environmental Protection Act 1994 & Anor v Linc Energy Ltd, ibid, [21]. -- 27 of 41 -- 28 Honour continued: “I am unable to reach a similar conclusion. To my mind, the relevant provisions are structured in such a way that the validity of a seizure of a thing under s 461(1) is not dependent upon the authorised person being satisfied on reasonable grounds that it has evidential relevance to an offence nominated in the warrant. Section 456(4) of the EP Act conditions the power to issue a warrant upon satisfaction on the part of the magistrate that there are reasonable grounds for suspecting that a particular thing or activity that may provide evidence of the commission of an offence against the EP Act is, or may be, at the place named in the warrant within the next seven days. The magistrate must be of a state of mind that he or she is so satisfied in order to issue the warrant. In this section, the particular thing or activity is accorded the descriptor ‘the evidence’. Thus the section employs the descriptor to describe a particular thing or activity. The qualifying phrase which follows it employs the word ‘evidence’, not as a descriptor of a particular thing or activity, but as a component of a characteristic descriptive of the evidential quality of a particular thing or activity. Section 461(1) empowers the authorised person to seize ‘the evidence”’ for which the warrant is issued. That is to say, the authorised person may seize that which is stated on the warrant to be ‘the evidence’, and, as to which, the magistrate held the required state of mind. This section does not require the authorised person, independently of the magistrate, to be similarly satisfied. It is of significance that the distinction drawn in s 456(4) between ‘the evidence’ and providing ‘evidence’ is maintained throughout s 461. As noted, s 461(1) applies when an authorised person enters a place under a warrant. It authorises seizure of ‘the evidence’ for which the warrant was issued. Section 461(3) applies to the same circumstance of entry. However, it authorises seizure of a thing beyond ‘the evidence’ but only if the authorised person has a belief that it is evidence of an offence against the EP Act: para (a). The absence of such a condition from s 461(1) is, in my view, no less significant. It grounds a firm inference that such a belief is not a condition for seizure under that section. I agree with the appellants’ submission that the lawfulness of a seizure of a thing under s 461(1) is dependent upon whether or not it meets the description of what, by the warrant, is authorised to be seized. In doing so, I do not mean to imply that the authorised person need have no state of mind with respect of the thing at all at the time of seizure. In my view, the authorised person need believe that the thing meets the description in the warrant of things that may be seized as ‘the evidence’. The appellants conceded as much during argument of the appeal. I acknowledge the authorities to which the learned primary judge referred for the principle of general law that both the search and seizure must reasonably be carried out. This principle is directed towards the manner in which execution of the warrant is undertaken. It does not inherently require that a state of mind exist with respect to the evidential quality of the thing to be seized, on the part of the person executing the warrant. The state of mind that may be required will depend upon the statutory context governing the issue and execution of the warrants concerned. I would regard the principle in the present statutory context as requiring the authorised person to believe on reasonable grounds that a document to be seized is within the types of documents stated to be ‘the 35 evidence” in the warrant. However, no belief on the part of the authorised person as to the document’s evidential value for proof of any -- 28 of 41 -- 29 of the offences referred to in the warrant is also required.”98 [83] Counsel for the applicants emphasised99 that Linc Energy was decided under a different statutory regime and, while that may be accepted, I do not think that the regime under the EP Act considered by the Court of Appeal and the regime under the PPRA that existed at the time the subject warrants were executed are so materially different that the construction of those provisions and associated reasoning can be set at naught. Of course, the state of mind required to exercise the seizure power under the PPRA depends on the meaning to be attributed to s 157(1)(h) in the context in which it appears, but there are obvious and relevant similarities between the two regimes. [84] Under the PPRA, the power conferred by s 157(1)(h) to seize a thing depends on the formation by the police officer of a reasonable suspicion that the thing “may be warrant evidence or property to which the warrant relates”. Where, as here, the warrants authorise the search of places to obtain evidence of the commission of an offence (s 150(1)(a)), the “warrant evidence” about which s 157(1)(h) is concerned is the evidence “for which [the warrants are] issued” under s 151: s 150AA. Such a warrant may only be issued if the magistrate is satisfied that there are “reasonable grounds for suspecting that such evidence (i.e., evidence of the commission of an offence) is, relevantly, at the place: s 151(a). If so satisfied, the warrant not only must state “brief particulars of the offence for which the warrant is issued” (s 156(1)(b)(i)), but it must also state “the warrant evidence or property that may be seized under the warrant”: s 156(1)(c). That evidence must necessarily be one and the same as the evidence that the magistrate was satisfied on reasonable grounds is at the place. Accordingly, the “warrant evidence” referred to in s 157(1)(h) is the evidence that the warrant states may be seized under it. To the point, it is the warrant that provides express authorisation for the seizure of that evidence. [85] As such, and like the regime considered in Linc Energy, there is no need for the police officer to be satisfied that a thing may provide evidence of the commission of an offence nominated in the warrant before it can be seized; it is enough for the police officer to reasonably suspect that the thing meets the description of the type or types of evidence that the warrant states may be seized. It would be otherwise if s 157(1)(h) was in terms that empowered the police officer to seize a thing if he or she reasonably suspected may be “evidence of the commission of an offence”, but that is not how that provision is expressed and nor can it be viewed in isolation. Rather, s 157(1)(h) operates in conjunction with the other provisions of Part 1 of Chapter 7 that precede it and, of those, ss 150AA, 151 and 156 make clear that search warrants under the PPRA are issued with respect to particular, and stated, evidence that the issuing magistrate is satisfied on reasonable grounds is at the place to be searched. [86] It follows that a police officer may lawfully exercise the power of seizure under s 157(1)(h) of the PPRA in relation to “a thing found at the relevant place, or on a person found at the relevant place” if he or she reasonably suspects that the thing may: (a) meet the description of what, under the warrant, is authorised to be seized; or (b) be “property to which the warrant relates”;100 or 98 Ibid, [22]-[28]. And see Philippides JA (at [48]-[49]). 99 Submissions on behalf of AKS and Smith in reply to the QPS, par 5; T. 2-29 and 2-30 (Mr Copley QC). 100 The alternative formulation under s 157(1)(h). -- 29 of 41 -- 30 (c) be “evidence of the commission of an offence”.101 [87] As to the related argument concerning whether electronic devices can be imaged or seized without first examining their contents by, if necessary, using the power conferred by s 154, a number of things may be said. First, if the device is described in the warrant as evidence that may be seized under it, nothing further needs to be done before it can be seized, provided the police officer reasonably suspects that the device meets the description in the warrant. Second, even if the device is not described in the warrant, a police officer might form a reasonable suspicion that it relates to the warrant evidence because it is the electronic repository for evidence that is described in the warrant. Third, the police officer might reasonably suspect that the device may afford evidence of the commission of an offence, whether nominated in the warrant or otherwise, because of the way, and the sequence in which, the records are generated, saved or stored.102 These categories are not intended to be exhaustive but, in each case, the device may be seized without any examination of its contents provided the relevant reasonable suspicion is formed. [88] For completeness, I mention that, after the applications were heard, the Serious and Organised Crime Legislation Amendment Act 2016 (Qld) was passed (Act No 62 of 2016) and received assent on 9 December 2016. By Division 2 of Part 21 of that Act, amendments were made to Part 1 of Chapter 7 of the Police Powers and Responsibilities Act 2000 (Qld). These included: (a) amendments to s 150AA (Definitions), s 150 (Search warrant application), s 151 (Issue of search warrant), s 154 (Order in search warrant about information necessary to access information stored electronically) and s 156 (What search warrant must state); (b) the insertion of s 154A (Order for access information after storage device has been seized); and (c) the insertion of s 154B (Compliance with order about information necessary to access information stored electronically). [89] Subsequently, supplementary submissions were invited from the parties as to the significance, if any, of the amendments. I am much assisted by those submissions but it is in my view unnecessary to here consider them in detail. It is sufficient instead to state that none of the amendments have retrospective effect, derogate from the ability of a party to claim legal professional privilege over property seized under a warrant (including property in the nature of electronic storage devices) or have any bearing on the construction question answered above (at [86]-[88]). Some additional observations [90] Before I turn to a consideration of the execution of each of the warrants under challenge – i.e., the First, Second and Third Warrants – it is useful to keep in mind that, although some of the warrant evidence is described in broad terms in the warrants, the applicants did not, in the end, maintain a challenge to the issue of the warrants. That is significant 101 Pursuant to the general power to seize evidence, that is to say, s 197 of the PPRA. 102 See TLC Consulting Services Pty Ltd v White [2003] QCA 131, pp 4-6; Chief Executive Administering the Environmental Protection Act 1994 & Anor v Linc Energy Ltd, ibid, [32]-[40]; Caratti v Commissioner of the Australian Federal Police (No 2), ibid, [207]-[225]. -- 30 of 41 -- 31 because nothing now turns on the breadth of those descriptions. Rather, the question for determination is whether those executing the warrants formed a reasonable suspicion that the property seized met the descriptions in the relevant warrant, broad though they may be. If so, they were entitled to exercise the seizure power under the PPRA. Of course, as explained above (at [88]), there are other bases on which a particular seizure could be made, but the main focus will be on whether the property seized met the description in the warrant. [91] As earlier identified (at [60]), the challenge to the execution of First, Second and Third Warrants is confined to the seizure of electronic storage devices such as computers, USB memory sticks, external hard drives, SIM cards, mobile telephones and the like. Because the onus of proof rests on the applicants, in order to succeed they must demonstrate by evidence that the seizure of those devices was not accompanied by a reasonable suspicion on the part of the person or persons seizing them that they met one or more of the descriptions in the relevant warrant. [92] It will therefore be apparent why it will not matter that some of the devices in question were not subjected to anything more than a cursory examination or, in many instances, no examination at all. There are in any event sound reasons why computers, for example, which have been seized are not imaged or examined at the place where the warrant is executed, including the impracticality of doing so and the risk that the integrity of the computer’s contents (and, therefore, its forensic value) will be compromised.103 The First Warrant [93] The background to the First Warrant, its issue and its execution have already been canvassed (at [12] – [20]). [94] The electronic devices in question, being those seized under this warrant, are listed and described in Exhibit 7, as follows: “Samsung Galaxy mobile phone (belonging to Burch) – item 1; ASUS F550L SN notebook computer (Burch’s computer) – item 49 Lenovo 92Z SN computer (Featherstone’s computer) – item 52” [95] Also listed and described on Exhibit 7 is a “forensic copy” of part of the hard drive of “Ms Lovitt’s computer”. [96] Dealing first with the electronic devices, the warrant evidence that could be seized under the First Warrant included “any mobile telephone services” and “associated equipment … including … handsets” and “all computers, including desktops, laptops, ‘Smart’ or multimedia phones”.104 Each of the devices in question meets these descriptions and, before they were seized, were identified as such by the seizing officers.105 It cannot be suggested that the officers did not suspect on grounds that were reasonable that the devices met the descriptions before seizing them. There was, in addition, evidence to 103 See, for example, affidavit of Benjamin De Waard filed in BS 3096 of 2015 on 16 December 2015, pars 11-14; TT. 1-68, 1-75, 1-77, 1-78, 1-86, 1-92, 1-96 (Martin). 104 Martin 1 (3096/15), ex KLM-1. 105 Martin 1 (3096/15), par 19; Martin 2 (3096/15), pars 16-18; Bell 1 (3096/15), exs KAB-1 to KAB-4; TT. 1-71, 1-72, 1-74, 1-92, 1-111 (Martin). -- 31 of 41 -- 32 support the conclusion that the officers also formed a reasonable suspicion that the devices may provide evidence of the commission of the money laundering offence nominated in the warrant.106 Each device was lawfully seized pursuant to the First Warrant. [97] The image taken of part of the hard drive for Sharon Lovitt’s computer is in a different category. Lovitt was present during the execution of the warrant. In the case of her computer, it was examined by a forensic computer analyst and determined to contain the most recent copy of the cloud server used by Phoenix Global.107 Clearly, the examination of the computer and the subsequent imaging was done under the access order made pursuant to s 154 of the PPRA which was incorporated in the warrant. The analyst was entitled to image the part of the hard drive he identified as a possible source of “evidence of the commission of an offence”. I am satisfied that the portion of the hard drive that was imaged was, in the view of the analyst, such a source. It follows that the imaging of Lovitt’s computer was lawfully done pursuant to the First Warrant. The Second Warrant [98] The issue and execution of the Second Warrant has earlier been discussed (at [21] – [26]). The statement of the warrant evidence that may be seized under the Second Warrant is noticeably narrower than under the First Warrant. Although the handsets and SIM cards for the mobile telephone services specified for Featherstone and Keong could be seized, the “stored electronic records” that could be seized were limited to those relating to Phoenix Global or one of the 34 other named companies and businesses. However, “documents” relating to the “personal bank accounts, trust accounts and any other financial holdings” of Featherstone, Keong and Featherstone’s son could also be seized. [99] Exhibit 6 details the electronic devices in question. The list is divided up into items personally located by DSS Castles and those that were not, as follows: (a) seized by DSS Castles: (i) black Blackberry mobile telephone – item 1 on Property Receipt 24101; (ii) black Samsung mobile telephone – item 2 on Property Receipt 24101; (iii) black Dell laptop computer – item 23 on Property Receipt 24104; (iv) two USB memory sticks – item 24 on Property Receipt 24104; (v) white iPhone – item 38 on Property Receipt 24104; and (b) seized by others: (i) silver iPad – item 36 on Property Receipt 24106; (ii) USB in white envelope – item 39 on Property Receipt 24106; (iii) Game Max computer tower – item 3 on Property Receipt 24101; (iv) LG computer tower – item 57 on Property Receipt 24109; (v) USB (“Dracula Head”) – item 59 on Property Receipt 24109; (vi) black external hard drive – item 60 on Property Receipt 24109; 106 See the evidence referred to in the Addendum Outline on behalf of the Commission, pars 3-14. And see TT. 1-68, 1-78, 1-86, 1-92, 1-96, 1-111 (Martin). 107 Martin 2 (3096/15), par 18. -- 32 of 41 -- 33 (vii) Two floppy discs – item 61 on Property Receipt 24109; (viii) Macbook Pro laptop – item 62 on Property Receipt 24109; (ix) black Toshiba laptop – item 51 on Property Receipt 24108; (x) disc (“old computer stuff”) – item 54 on Property Receipt 24108; (xi) Micro SD – item 54 on Property Receipt 24108; (xii) yellow envelope containing a disc – item 54 on Property Receipt 24108; (xiii) SIM card – item 41 on Property Receipt 24107; (xiv) USB – item 47 on Property Receipt 241017; and (xv) USB – item 48 on Property Receipt 241017. [100] According to the affidavit sworn by DSS Castles, the three mobile telephones seized by him were found in the possession of Featherstone and Keong, the black Dell laptop computer was found on the upstairs kitchen table, and the two USB memory sticks were found in the centre console of a vehicle.108 The mobile telephones that were seized correspond with the telephone numbers for the services stated in the warrant.109 [101] DSS Castles also deposed to having conducted a briefing with other police and Commission staff regarding the execution of the warrant early on the day when it was executed.110 Amongst other things, staff were briefed on “the details of the offences subject to the search warrant as well as the description of the things sought” under it.111 The staff who were selected to assist in the execution of the warrant were “heavily involved in the actual investigation and had substantial background knowledge of information and evidence which was being relied upon to support a reasonable suspicion that evidence of the offence of fraud and money laundering” was at Featherstone’s residence.112 By this point in time, a “substantial amount of evidence and intelligence [had] been compiled from various sources including financial analysis, physical surveillance, telecommunication interception, call charge record analysis, CCTV capture, CCC hearings …, witness statement[s], human source and forensic computer examination”.113 [102] During the execution of the search warrant, discussions were had between staff as to whether particular “items located [were] reasonably suspected of being evidence of the commission of the offences [that were the] subject [of] the search warrant”.114 A review of the items proposed to be seized was also undertaken with Featherstone and his lawyer.115 [103] Drawing on his experience,116 DSS Castles deposed that “electronic devices such as computers will almost invariably contain stored electronic information concerning the business activities of an enterprise and be used by organisations for the sending and 108 Castles (3096/15), pars 17 and 21; Bell 1 (3096/15), exs KAB-5 and KAB-6. 109 Bell 1 (3096/15), ex KAB-5, p 89 and Martin 1 (3096/15), ex KLM-4. 110 Castles (3096/15), par 9. 111 Ibid. 112 Ibid, par 10. 113 Ibid, par 11. And see T. 1-101, TT. 1-104 to 1-106 (Castles). 114 Ibid, pars 15 and 24. 115 Ibid, pars 26 and 27. 116 As to which, see TT. 1-106 and 1-107. -- 33 of 41 -- 34 receipt of emails”.117 In this regard, it is not only the documents that are found on a computer that may be relevant; “stored electronic information concerning, for example, documents which have been deleted, or altered, can also be important evidence” and “the same can be said of USB memory sticks”.118 DSS Castles then deposed: “I suspected that the computers may contain evidence and documents including records of the companies referred to in the warrant and relating to the financial holdings of those named in the warrant. I suspected that the computers would contain emails and other communications between persons involved in the facilitation of cold call investment fraudulent companies, financial transaction information, personal electronic diaries and other evidence of associations.”119 [104] When cross-examined at the hearing, DSS Castles added that he was in possession of information to the effect that “Featherstone was operating the business from his residential address”.120 He also pointed to the existence of a Wi-Fi network at the residence that “allowed any person to access any computer there to go to areas such as a cloud service server”.121 In re-examination, DSS Castles explained in considerable detail why he seized particular items of property (including those he had not personally located).122 He was then cross-examined again by Mr Copley QC.123 [105] Having reviewed these passages of evidence in conjunction with the transcript of the execution of the search,124 I am unpersuaded that any illegality attended the execution of the Second Warrant. To the point, DSS Castles turned his mind to whether the property seized “satisfied the description of the items in the warrant” and suspected that it did.125 Put another way, he was satisfied that the items seized (including the electronic devices in question) met the description of the property that could be seized under the warrant. Furthermore, DSS Castles also suspected that the property constituted “evidence of the commission of the offences” nominated on the warrant.126 In my view, on the whole of the evidence, those suspicions were founded on grounds that were reasonable in all of the circumstances. I am not satisfied that the execution of the Second Warrant was unlawful. The Third Warrant [106] Again, the issue and execution of the Third Warrant has been earlier discussed (at [34] – 38]). The following electronic devices were amongst the property seized: (a) a blue Verbatim USB stick – item 1A; (b) a Silver SureBridge USB stick – item 1B; (c) four CDs – item 4; (d) a CD in a case – item 5; (e) a Samsung mobile telephone – item 8; 117 Ibid, par 18. 118 Ibid. 119 Ibid, par 19. And see T. 1-102 (Castles). 120 T. 1-105. 121 T. 1-100 (Castles). 122 TT. 1-109 to 1-118 and 2-3 to 2-7. 123 TT. 2-8 to 2-18. 124 Bell 1 (3096/15), exs KAB-5 and KAB-6. 125 T. 2-7. 126 Ibid. -- 34 of 41 -- 35 (f) a SIM card – item 17; (g) a Toshiba laptop computer, serial number 77076304Q – item 18; (h) a Lenovo Think Centre all-in-one computer, serial number 3414C2M S1E2M05 – item 20; (i) a Lenovo Think Centre all-in-one computer, serial number S1ETM02 – item 21; (j) a Lenovo Think Centre all-in-one computer, serial number 10BA0001AUS100072J with attached USBs – item 22; (k) a black Toshiba USB – item 22A; (l) a SanDisk USB – item 22B; (m) a CD in a case – item 28; (n) a Nexstar external hard drive – item 29; (o) a Dell laptop, model number PP19S – item 30; (p) three Nokia mobile telephones – item 31; (q) two Nokia mobile telephones, one Motorola mobile telephone and one micro adapter with a micro SD card – item 32; (r) one SIM card – item 33; (s) one Seagate external hard drive, serial number 9QM24AJV – item 35; (t) one Nokia mobile telephone – item 43; and (u) one Capricorn computer tower, serial number BD200402.127 [107] In addition to the seizure of those devices, forensic images were taken of the contents of an email account associated with Burch as well as the contents of “My Box” which, I infer, contained a backup of the cloud server that the office had been using.128 [108] Like the First Warrant, the warrant evidence under the Third Warrant is broadly described. It includes the following categories of evidence: (a) “Any mobile telephone services, other communications devices and/or associated equipment and attachments including purchase documents, bills, packaging, SIM cards, handsets and/or any other item”; (b) “All digital storage media including hard drives, DVD’s, CD’s, digital backup tapes, USB thumb drives, memory sticks, mp3 players and any other removable media capable of storing electronic data’; and (c) “All computers, including desktops, laptops, ‘Smart’ or multimedia mobile phones, digital cameras, personal data assistants (PDA’s) and game consoles or other computer peripherals capable of processing data, or having internet connectivity. Any computer hardware or peripheral equipment necessary to gain access to the computer or data contained in any digital storage media.”129 127 Martin 1 (3096/15), ex KLM-7. 128 Ibid. Reference was made to the “My Box” files in connection with the execution of the First Warrant: Martin 2 (3096/15), par 18. 129 Martin 1 (3096/15), ex KLM-6. -- 35 of 41 -- 36 [109] It will be seen at once that each of the electronic devices seized under the Third Warrant (and listed in [106]) fits within one or more of the categories extracted immediately above. As such, their seizure will be lawful provided the officers executing the warrant formed the reasonable suspicion that each of the devices fell within one or more of those categories. [110] In comparison to the evidence called in support of the First and Second Warrants, there is not a great deal of evidence before the court that goes to the execution of the Third Warrant. That is in large part due to a forensic choice made by Mr Horton QC for the QPS not to lead evidence as to the states of mind of those executing the warrants because of his confidence in the argument he advanced as to the proper construction of the PPRA.130 As it has turned out, I accepted the correctness of that argument, but what evidence there is on the execution of the warrant is less than clear as to the states of mind of the officers involved in executing the warrant.131 For example, DS Martin said when giving evidence at the hearing that she seized the “computers” pursuant to her powers under the PPRA and “by virtue of the search warrant”132 but, elsewhere, spoke of having suspected that the “storage devices” held information relevant to the offences under investigation.133 [111] Of course, it is for the applicants to demonstrate that one (or more) of the electronic devices was seized without the relevant officer first forming a suspicion based on reasonable grounds that it (or they) met at least one of the descriptions of warrant evidence in the warrant, but I am far from satisfied about that. To the contrary, it seems to me to be more probable than not that, as with the execution of the First and Second Warrants, the officers seized devices that they suspected met one or more of the descriptions in the warrant and which they suspected may supply evidence of the commission of one or more of the offences nominated in the warrant. On the evidence that is available, I am unpersuaded that those suspicions were not founded on grounds that were reasonable in all of the circumstances. It follows that the applicants have failed to demonstrate that any of the electronic devices in question were unlawfully seized pursuant to the Third Warrant. [112] That leaves the forensic images that were taken of the contents of the email account in Burch’s name as well as the “My Box” files. To my mind, there can be little doubt that this was done pursuant to the access order incorporated in the warrant in relation to what were possible sources of “evidence of the commission of an offence”. To the point of the onus, it has not been established that the taking of the images pursuant to the Third Warrant was other than lawful. Other conduct during the searches [113] The argument advanced by AKS and Smith that “no reasonable or proper opportunity” was afforded to them to make claims to legal professional privilege in connection with the execution of the First, Second and Third Warrants134 was supported by Mr Copley 130 T. 2-50 (Horton QC). 131 De Waard (3096/15), pars 18-22; Martin 1 (3096/15), pars 31-37; Bell 1 (3096/15), ex KAB-11; TT. 1-83 to 1-86 (Martin). 132 T. 1-86 (Martin). 133 TT. 1-81 and 1-82 (Martin). 134 Submissions on behalf of AKS and Smith, pars 27-29, 41, 48, 70(b), 96-103. -- 36 of 41 -- 37 QC for Featherstone and Phoenix Global.135 The argument relies on a principle that is said to be derived from the decision of the Full Court of the Federal Court in Commissioner of Taxation v Citibank Ltd136 to the effect that, where no practical or realistic opportunity is provided for asserting a claim to legal professional privilege, then the seizure will be unlawful because it will have been beyond power.137 However, as Mr Copley QC frankly conceded in both written and oral submissions, that principle was rejected by the South Australian Court of Criminal Appeal in Question of Law Reserved (No 1 of 1998)138 and by the Full Court of the Federal Court in JMA Accounting Pty Ltd v Commissioner of Taxation.139 Indeed, in the latter case, the court described the conclusion reached in its earlier decision as “startling”.140 [114] I would not follow Citibank either; the proposition that the relevant powers under the PPRA are limited to a search and seizure that allows for a reasonable opportunity to claim legal professional privilege cannot, with respect, be correct. In any event, and without traversing the evidence before the court on this point, the necessary premise for the argument – that AKS or Smith were deprived of a reasonable opportunity to claim legal professional privilege in the case of the First, Second or Third Warrants – is missing. There was no impediment to claims of legal professional privilege being made at the time of the execution of those warrants or, indeed, in a timely manner thereafter.141 [115] As to the associated point made on behalf of Featherstone and Phoenix Global that the execution of the First, Second and Third Warrants was unlawful because privileged documents were seized, it may be accepted that the seizure power under the PPRA should not be construed so as to authorise the seizure of a document that is the subject of a proper claim to legal professional privilege.142 However, the fact that such a document is seized during a search means that the discretionary power to exclude the document from evidence in the course of any later trial is enlivened and, if necessary, declaratory or injunctive relief granted in the interim. As I apprehend the present state of the law, the seizure of a document that is the subject of a valid claim to legal professional privilege will not, without more, make the search unlawful. Legal professional privilege [116] AKS Investments and Smith claim legal professional privilege in respect of each of the disputed documents earlier identified (at [54]), but the QPS contend that no privilege can subsist in any of those documents because they were “created in furtherance of an illegal or fraudulent purpose or a purpose which is contrary to the public interest”.143 135 Submissions on behalf of Featherstone and Phoenix Global, par 29. 136 (1989) 20 FCR 403. 137 Ibid, 437 per French J. 138 (1998) 70 SASR 281, 290-296 per Doyle CJ. 139 (2004) 139 FCR 537, 541-542. 140 Ibid, 541. 141 Privilege will not necessarily be lost if it is not claimed at the time of seizure, and particularly if the person for whom the privilege exists has only a limited opportunity to claim privilege at that time: Saunders v Commissioner Australian Federal Police (1998) 160 ALR 469, 473; Commissioner of Police v Nirta [2002] 1 Qd R 364, 368 – 369. 142 Question of Law Reserved (No 1 of 1998), ibid, 298. 143 Submissions on behalf of the QPS, part 6(a). -- 37 of 41 -- 38 Applicable principles [117] In The Queensland Local Government Superannuation Board v Allen,144 I summarised the general principles to be applied:145 “Legal professional privilege is ‘more than an aspect of civil and criminal procedure and more than a rule of evidence’;146 it is a rule of substantive law.147 It may be ‘availed of by a person to resist the giving of information or the production of documents which would reveal communications between a client and his or her lawyer made for the dominant purpose of giving or obtaining legal advice or the provision of legal services, including representation in legal proceedings’.148 There is no differentiation in legal effect between the two categories of legal professional privilege149 and, as such, either may be invoked to resist the disclosure of a document in the course of a proceeding where to do so would reveal a communication falling under either category. The principle underlying legal professional privilege is that “a person should be entitled to seek and obtain legal advice without the apprehension of being prejudiced by subsequent disclosure of confidential communications”.150 Without the privilege, the administration of justice ‘would be greatly impeded or even rendered impossible’.151 It rests not only on the confidence reposed by the client in the legal adviser but the necessity, in the interests of justice, of protecting those communications from disclosure.152 Although confidential communications between the client and lawyer are protected, the privilege exists for the benefit of the client and not the lawyer.153 A court may examine documents where there is a disputed claim of privilege, and should not be hesitant to do so.154 In appropriate cases, a court may also permit cross-examination of a deponent of an affidavit claiming privilege.155” [118] To the above may be added, relevant to this case, that although privilege attaches to communications as opposed to documents, a document created for the dominant purpose of obtaining legal advice, furthering existing or anticipated litigation (or both) will attract privilege.156 It also extends to material prepared for the dominant purpose of 144 [2016] QCA 325. 145 Ibid, [50]. 146 Commissioner of Australian Federal Police v Propend Finance Pty Ltd (1997) 188 CLR 501, 564 per Gummow J. 147 Attorney-General (NT) v Maurice (1986) 161 CLR 475, 490 per Deane J; Mercantile Mutual Custodians Pty Ltd v Village/Nine Network Restaurants & Bars Pty Ltd [2001] 1 Qd R 276, 287-288 per Byrne J; Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission (2002) 213 CLR 543, [9]. 148 Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission, ibid, [9]- [11] per Gleeson CJ, Gaudron, Gummow & Hayne JJ; Esso Australia Resources Ltd v Federal Commissioner of Taxation (1999) 201 CLR 49, [35], [61]-[62] per Gleeson CJ, Gaudron & Gummow JJ, [167] per Callinan J. 149 That is to say, litigation privilege or advice privilege. 150 Baker v Campbell (1983) 153 CLR 52, 115-116 per Deane J, and quoted with approval by the plurality in Mann v Carnell (1999) 201 CLR 1, 11 per Gleeson CJ, Gaudron, Gummow and Callinan JJ. And see Waterford v The Commonwealth (1987) 163 CLR 54, 62, 64-65. 151 Attorney-General (NT) v Maurice (1986) 161 CLR 475, 480 per Gibbs CJ. And see Mason and Brennan JJ at 487: “The raison d’etre of legal professional privilege is the furtherance of the administration of justice through the fostering of trust and candour in the relationship between lawyer and client”. 152 Farrow Mortgage Services Pty Ltd (in liq) v Webb (1996) 39 NSWLR 601, 607 per Sheller JA citing Russell v Jackson (1851) 9 Hare 387, 391; 68 ER 558, 560. 153 Mann v Carnell, ibid, 13 [28] per Gleeson CJ, Gaudron, Gummow and Callinan JJ. 154 Esso Australia Resources Ltd v Federal Commissioner of Taxation, ibid, [52]. 155 Ibid, [50]. 156 Daniels Corporation International Pty Ltd v Australian Competition & Consumer Commission, ibid, [9]. -- 38 of 41 -- 39 communication to a legal adviser, even if the communication is yet to occur.157 A common sense approach is to be taken to communications between the lawyers acting for the person for whose benefit the privilege exists and third parties.158 In particular, if privileged material is disclosed to a third party in circumstances where the third party would, or should, understand that confidentiality attaches to that disclosure, then privilege will not be lost by that disclosure.159 [119] The applicants, as the parties asserting an entitlement to claim privilege over the disputed documents, have the onus of proving the facts on which the claim for privilege is said to be founded.160 To that end, AKS and Smith have placed a body of affidavit evidence before the court in an attempt to establish that the documents contained confidential communications for the dominant purpose of either obtaining legal advice or furthering existing or anticipated litigation or for both such purposes. [120] As to the arguments advanced by the QPS, it is well-established that no privilege can subsist in communications made in furtherance of an illegal or fraudulent purpose.161 This exclusion encompasses a “wide species of fraud, criminal activity or actions taken for illegal or improper purposes”.162 It is broad enough to extend to conduct undertaken for the purpose of acquiring evidence for use in litigation.163 It is not necessary to demonstrate that the relevant lawyer retained was a party to the fraud.164 [121] The onus is on the QPS to demonstrate more than a mere allegation of an illegal purpose.165 There must be evidence sufficient to establish a prima facie case that the allegation has a foundation in fact.166 As Gibbs CJ said in Attorney-General (NT) v Kearney,167 '”there must be something to give colour to the charge”.168 As to this, in Commissioner of Australian Federal Police v Propend Finance Pty Ltd,169 Brennan CJ made these observations: “In determining whether a claim of legal professional privilege can be upheld, it is open to the party resisting the claim to show reasonable grounds for believing that the communication effected by the document for which legal professional privilege is claimed was made for some illegal or improper purpose, that is, some purpose that is contrary to the public interest. I state the criterion as 'reasonable grounds for believing' because (a) the test is objective and (b) it is not necessary to prove the ulterior purpose but there has to be something 'to give colour to the charge', a 'prima facie case' that the communication is made for an ulterior purpose. The purposes that deny the protection of privilege for a communication (whether documentary or oral) 157 Grant v Downs, ibid, 690. 158 Archer Capital 4A Pty Ltd v Sage Group PLC (No. 2) (2013) 306 ALR 384, 396. 159 Australian Rugby Union v Hospitality Group (1999) 165 ALR 253, 259 - 260; Public Transport Authority of WA v Leighton Contractors (2007) 242 ALR 181, 189. 160 Grant v Downs, ibid, 689 per Stephen, Mason & Murphy JJ. 161 Baker v Campbell, ibid; R v Cox and Railton (1884) 14 QBD 153; Commissioner of Australian Federal Police v Propend Finance Pty Ltd, ibid; Carter v Managing Partner, Northmore Hale Davy & Leake (1995) 183 CLR 121, 134-135. 162 AWB Limited v Honourable Terence Rhoderic Hudson Cole (No 5) (2006) 155 FCR 30, [211]. 163 Dubai Aluminium Co Ltd v Al Alwai [1999] 1 WLR 1964; Kuwait Airways Corpn v Iraqi Airways Co (No 6) [2005] 1 WLR 2734, [33]. 164 AWB Limited v Honourable Terence Rhoderic Hudson Cole (No 5), ibid, [214]. 165 R v Dunwoody (2004) 212 ALR 103, [50]. 166 International Entertainment (Aust) Pty Ltd and Anor v Churchill and Ors [2003] QSC 247, [13]. 167 (1985) 158 CLR 500. 168 Ibid, 516. 169 Supra. -- 39 of 41 -- 40 between a client and the client's solicitor or counsel include the furthering of the commission of an offence.”170 [122] Lastly, it should not be overlooked that, where this exception applies, it will apply to the communications that were made in furtherance of an illegal or fraudulent purpose. It is not enough to point to the existence of some nefarious plan and then assert the loss of privilege over all communications that would otherwise attract legal professional privilege. Rather, it is the communications themselves that must be considered to determine whether they were made in pursuit of that plan. That is why, even if a prima facie case is established on the evidence, an inspection of the questioned communications by the court will always be critical to the outcome of this aspect of the case. Consideration [123] In support of its contentions, the QPS relied on one affidavit. It was sworn by DS McIntosh and exhibited a considerable body of material that he gathered during the course of his investigation.171 Much of it was objected to by Mr Byrne QC on behalf of AKS and Smith on the ground that it is comprised of hearsay. Although I reserved that question, I have decided to receive it for the purposes of this argument. That is in part because I have come to view as to the character of the questioned communications following my review of the disputed documents, but also because I think it is sufficiently arguable that evidence of the kind objected to may be allowed in proof of the prima facie case contended for by the QPS. [124] That said, the material exhibited to DS McIntosh’s affidavit is adequately summarised by Mr Horton QC in his written submissions.172 Accepting as I do for the purposes of this argument the “colour to the charge” conveyed by that evidence, the existence of a plan to lure Gazal to Indonesia in order to confront him about the evidence he gave in the National Australia Bank litigation cannot be doubted. Nor can it be doubted that the device used to do so was a ruse. However, it was contended by the QPS that the illegal or fraudulent part of the plan – described as Plan B173 – was to “obtain a confession from Gazal under duress or otherwise against his free will so that Smith and AKS could use the confession in proceedings against Gazal”.174 Reliance was placed on part of the contents of an email from Smith to Crook in which Smith remarks, “you can image [sic] how he will feel when I walk in the room and we have all exits covered”.175 [125] On the evidence placed before the court, the QPS invited the court to draw the following inferences: “First, that the reference to ‘Plan B’, which is mentioned repeatedly but not otherwise explained in detailed writing, was a plan which involved conduct designed to illicit, by pressure, a confession against Gazal’s free will; and Second, it was contemplated by Smith that once Gazal was in the false interview Smith was intending to intimidate Gazal. This inference is open from Smith’s email of 15 November 2012 where he records that ‘you can image how [Gazal] will feel 170 Ibid, 514-515. 171 McIntosh (3096/15). 172 Submissions on behalf of the QPS, pars 24 to 77. 173 See McIntosh (3096/15), pp 113-114 (email from Smith to Crook). 174 Ibid, par 93. 175 Ibid, pp 18-20. -- 40 of 41 -- 41 when I walk in the room and we have all exits covered’. This invites (at the minimum) the inference that Smith was proposing to detain Gazal against his will and there a further inference opens: that Gazal would be detained until he gave Smith what he wanted; Third, at least one of those charged, Crook, had reservations about the plan - he openly questions Smith whether he was ‘doing anything wrong’; and Fourth, that Gazal has made a very detailed statement outlining that Smith made threats against his life and safety unless he gave a confession.”176 [126] It may be observed that the evidentiary foundation for the drawing of such inferences is slight but I accept that they are open on that evidence. However, they are not supported by – and in important respects contrary to – the contents of the disputed documents that I have reviewed. I refer in particular to the emails comprising documents 24 and 33 in proceeding BS 3096 of 2015. Further, I have examined each of the disputed documents (in both proceedings) and, having done so, am unable to conclude that any of them were made in furtherance of an illegal or fraudulent purpose. [127] There being no argument advanced by the QPS that legal professional privilege should not otherwise attach to the disputed documents, and on my satisfaction from my examination of them in association with the supporting affidavit material that legal professional privilege properly arises, the claims to privilege over those documents must be upheld. Conclusion [128] I am not persuaded that the First, Second or Third Warrants were unlawfully executed. [129] The claims to legal professional privilege over the disputed documents must be upheld. [130] Because it was accepted that the question of the appropriate relief will depend on the outcome of the arguments advanced at the hearing and which I have now decided, the parties will be directed to bring in minutes of order to reflect these reasons and to deal, if necessary, with the question of costs. 176 Submissions on behalf of the QPS, par 100. -- 41 of 41 --