Seamus E. Byrne's - In Pursuit of Relevance

Different Solutions Pty Ltd v Commissioner, Australian Federal Police (No 2) [2008] FCA 1686 (14 November 2008)

The recent decision of Graham J may be interpreted as a liberal expansion of the power for a federal investigatory body, to seize or copy electronically stored information, in the execution of a search warrant.

His Honour's interpretation appears largely justified by the fact that any evidence (e.g. the contents of a seized hard drive or forensic image) may subsequently be excluded as improperly or illegally obtained under the Evidence Act 1995 (Cth).

The decision also serves as a timely reminder for executing officers to ensure that they can satisfy themselves, and subsequently demonstrate to the Court, reasonable grounds for any seizure or copying action. Specifically, even where a search (e.g. keyword search) of a computer or electronic media is not possible (or undertaken) prior to seizure or copying.