Smethurst takes on the AFP with a win, a loss and ultimately no charge

The High Court in Smethurst v Commissioner of Police:[1]

1. were unanimous in their decision that a search warrant gained by the Australian Federal Police (AFP) in the notorious search and seizure of the Sunday Telegraph’s journalist Annika Smethurst’s home was invalid; and
2. by a 4:3 majority, refused to grant injunctive relief to the journalist and NewsCorp, allowing the AFP to retain the material seized under the illegal search and invalid warrant.

Background 

In 2018, the Sunday Telegraph published articles written by Annika Smethurst (Smethurst) concerning proposed legislative amendments to the powers of the Australian Signals Directorate (ASD). Two of the articles contained an image of documents bearing the markings “TOP SECRET”.

Subsequent to the publication of those articles, in June 2019 the AFP searched Smethurst’s home, located her mobile phone, downloaded material from it onto an AFP USB and retained the USB as part of their investigation into an official secrets offence contrary to section 79(3) Crimes Act 1914 (Cth) (the Crimes Act).

Smethurst and NewsCorp (the Plaintiffs) subsequently filed a special case in the High Court’s original jurisdiction seeking, in summary, a declaration that the AFP search warrant was invalid and an injunction requiring the delivery up, or destruction of, the material copied and seized or otherwise preventing the material from being passed to prosecuting authorities.

The warrant

The High Court was unanimous in its decision that the search warrant was invalid. It was held to be invalid on the basis it:

• misstated the offence said to arise under section 79(3) of the Crimes Act as it stood in April 2018; and
• failed to satisfy the condition in section 3E(5) of the Crimes Act that the warrant state the offence to which it related with sufficient precision.

The High Court quashed the search warrant issued by the magistrate.

The mandatory injunction

The Plaintiffs sought a mandatory injunction requiring the destruction or delivery up of the information retained by the AFP, on the basis that:

• seizure of the material under an invalid warrant was trespass; or
• alternatively, the Crimes Act only permitted the use of ‘things seized’ lawfully under the provisions of the Crimes Act and accordingly there was an implied statutory prohibition on the AFP’s use of the material.

Trespass

In relation to the first basis, Chief Justice Kiefel, together with Justices Bell and Keane, noted that whilst conduct involving the search of premises and the seizure of property under an invalid warrant constituted a trespass, the remedy for trespass was an award for damages, not a mandatory injunction. Their Honours commented that it was well settled that for a grant of an injunction in equity’s auxiliary jurisdiction (whether an interlocutory or final injunction) a plaintiff must have a legal right which the injunction will protect and that whilst “the injunction remedy is still the subject of development by courts exercising equitable jurisdiction” the basic principle remained that the legal or equitable rights requiring protection must be identified.

Their Honours referred to similar cases where an injunction was sought and denied as a remedy for trespass on the basis that no legal right was established. Ultimately, the Plaintiffs could not point to an authority which recognised their interest in not being investigated in relation to an offence as a legal right.

Statutory prohibition

In relation to the second basis, the plurality found that the Crimes Act was not the sole source of authority or power governing how the AFP used and handled material and that neither the common law, or statute law, presumes that information unlawfully obtained may not be used in the investigation or prosecution of an offence. Their Honours referred to the general power provided to the AFP under section 8 of the Australian Federal Police Act 1979 (Cth) and to the principle formed in Bunning v Cross[2] that the public interest in bringing persons to conviction is to be weighed against unlawfully obtained evidence. The plurality noted that section 138 of the Evidence Act 1995 (Cth) would ultimately provide a criminal court with the discretion to exclude the evidence on the basis it was improperly or illegally obtained.

Alternative basis

Notably, the plurality referred to the law developing in relation to decisions concerning a breach of a common law right to privacy, commenting that a cause of action might have been available with respect to an invasion of privacy. Smethurst had not however claimed a breach of a common law right to privacy or a tort for the invasion of privacy other than the fact the trespass to her home and phone was generally an invasion of her privacy. Smethurst also did not claim that the information taken was confidential. If it was, this might have founded the grant of an injunction to restrain the publication of confidential information improperly or surreptitiously obtained.

The constitutional injunction

The Plaintiffs also sought a writ of Mandamus or prohibition or injunction restraining the AFP from making the information seized available to prosecuting authorities pursuant to section 75(v) of the Constitution. That section permits an injunction against a Commonwealth officer who acts outside their powers.

The plurality held that the fact an officer of the Commonwealth had acted in excess of power may bring section 75(v) into focus but was not itself sufficient for the grant of an injunction. The grant of an injunction remained essentially an equitable remedy subject to the same discretionary considerations as applied in any other field.

Discretionary considerations – public interest

Their Honours provided that even if the Plaintiffs had identified a basis for injunctive relief, “[i]t has long been accepted that the courts will refuse to exercise their discretion to grant equitable relief when to do so would prevent the disclosure of criminality which it would, in all circumstances, be in the public interest to reveal“.

Outcome

The majority of the High Court (Chief Justice Kiefel, Justices Bell and Keane and separately Justice Nettle) refused to grant the injunctive relief sought by the Plaintiffs. This allowed the AFP to retain the material seized and left Smethurst in limbo as to whether she would face a criminal prosecution.

The AFP has since announced that Smethurst will not be charged as a result of the investigation.

Key takeaway

The decision highlights the importance of ensuring warrants are precise in their terms and challenging them at the time of a search prior to the seizure of material insofar as it is possible to do so.

The decision also highlights the importance in clarifying the legal right when seeking a mandatory injunction based on trespass and to consider exploring alternative basis for the relief including breaches of confidentiality and privacy.

Authored by:

Scott Couper, Partner
Claudia Dennison, Senior Associate