“Eric Johnson”, a Sydney criminal law solicitor, has successfully sued NSW Police, after the Supreme Court declared that a search warrant obtained to confiscate his phone was an invalidly wide “fishing expedition.”

The judicial review was brought in the Supreme Court’s inherent supervisory jurisdiction by the solicitor, whose identity – and the particulars of why his phone was sought by the police – have been suppressed by Justice Natalie Adams, “to protect his safety”. 

Nonetheless, HH observed that this struck a “balance” with the principles of open justice.

On August 25, 2023, coppers at Bankstown Police Station seized the plaintiff’s phone under a search warrant issued in accordance with the Law Enforcement (Powers and Responsibilities) Act, NSW. 

It was Johnson’s personal phone, and it included many of his clients’ files. The data sought related to three specified offences: supply prohibited drug (s.25 Drug Misuse and Trafficking Act 1985 (NSW)), fire firearm in or near public place (s.93G(1)(b) Crimes Act 1900 (NSW)) and do act etc intending to pervert the course of justice (s 319 Crimes Act 1900). 

At the time, solicitor Johnson agreed to provide the police with the passcode to his phone, on the condition that they followed the NSW Law Society Protocol on search warrants and legally privileged information. 

Plod undertook to follow the protocol, and downloaded files from the solicitor’s phone, where it remained in the station’s custody until the Criminal Groups Squad (the NSW Police Force’s serious and organised crime target group) filed a separate search warrant for the seizure of the mobile phone. 

The phone was seized from the Bankstown station by the CGS without notice given to the plaintiff, who was only aware of that second warrant when served with a Digital Evidence Access Order.

“Johnson” commenced proceedings in the Supreme Court after the Criminal Groups Squad refused to follow the Law Society protocol during its investigation. 

The plaintiff alleged that there were no reasonable grounds for the issue of the second warrant, and that the offences alleged in connection with the warrant were not described in sufficient detail. 

Johnson succeeded on the basis that the warrant was invalid because it failed to adequately particularise its objects. However, HH found that it was not open for her to infer unreasonableness on the face of the warrant merely because it lacked specificity.

As a general rule, warrants must sufficiently specify what items are authorised to be searched for and seized. 

Likewise, the nature of the offence in question must be stated in the warrant “with the precision of an indictment” in order to delimit the ambit of a search and seizure.

The Commissioner argued that the only relevant item that needed to be disclosed in the warrant was the physical phone itself. 

Adams J disagreed, finding that the warrant ought also to have identified the classes of data contained within the phone which Plod wanted to inspect, as it otherwise would have conferred unfettered power for the police to inspect all the material in Eric’s phone. 

HH stated that “seizing a solicitor’s mobile telephone to search for documents is in many ways analogous to executing a search warrant to search their office”. 

She quashed the second warrant and declared it invalid, and ordered that the phone be returned to the plaintiff with costs.