NSW criminal law – successful application for return of property seized pursuant to warrant – electronic devices seized from victim – victim practises as a solicitor relying on the use of the devices to store and share data – devices possibly contain evidence of commission of a crime
Abbas v Commissioner of NSW Police  NSWSC 946.
On 26 July 2023, Mahmoud Abbas, a NSW lawyer, was shot and wounded outside his home in Greenacre, south-western Sydney, by an unknown assailant.
Police and paramedics attended, and Abbas was taken to hospital. His personal mobile phone was seized; he did not consent. Later that day, the police obtained a crime scene warrant for Abbas’ residence.
While executing the warrant, the police seized further electronic devices pursuant to s 95(1)(m) of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW). Based on Abbas’ occupation as a solicitor specialising in criminal law and the nature of the assault, the police were treating the shooting as a targeted attack.
Abbas was not suspected of having been involved in the commission of any offence. However, the police maintained it was possible that the seized electronic devices would contain information relevant to their investigation. It is contended that because Abbas is a solicitor with a significant practice in criminal law, material relating to his clients may yield information that would help their investigation.
In June 2019, Abbas was abducted by an unknown person or persons and violently assaulted. He refused to give a statement or information to the police. The police consider the abduction and shooting are related and in the absence of any cooperation from Abbas, they said access to his electronic devices is necessary to appropriately investigate the offence perpetrated against him.
Abbas did not seek the return of the data downloaded from the seized devices. Rather, he sought return of the seized devices themselves.
Applicable principles: Application of ss 218 and 219 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) – return of seized items and disposal of property on application to court – whether seized devices would themselves be used as evidence in any proceeding that may in due course be commenced in respect of the attack on Abbas – whether, in circumstances where there is doubt that all of the information the seized devices contain has been retrieved, the police ought to be entitled to retain possession of the physical devices – whether the extracted data is required for investigation of a specific crime or potentially required as evidence – whether the physical devices are required as evidence – whether undertaking cures concern that material from devices may be deliberately or inadvertently deleted.
Held: Having regard to the state of retrieval by police of data from the seized devices, and on the basis that Mahmoud Abbas offered an undertaking in acceptable terms, seized devices should be returned to him no later than 4pm on Wednesday, 16 August 2023.
Insufficient evidence that the seized devices would themselves be used as evidence in any proceedings that may in due course be commenced with respect to the attack. Devices not required as evidence.
Hannah Hellyer is an Auckland criminal defence barrister and a member of the ADLS Criminal Law committee and Parole Law committee