White SW Computer Law
Intellectual Property, Information Technology & Telecommunications Lawyers
Melbourne Office - PO Box 452, COLLINS STREET WEST Victoria 8007 Australia
Sydney Office - GPO Box 2506, SYDNEY New South Wales 2001 Australia
Telephone: Melbourne Office - +61 3 9629 3709 Sydney Office - +61 2 9233 2600
Facsimile: Melbourne Office - +61 3 9629 3217 Sydney Office - +61 2 9233 3044
Email: wcl@computerlaw.com.au Internet: http://www.computerlaw.com.au

User Tools

Site Tools



This shows you the differences between two versions of the page.

Link to this comparison view

digitalevidence [2017/07/30 18:02] (current)
Line 1: Line 1:
 +===== Steve White, Principal - White SW Computer Law =====
 +  - Cases
 +     - Microwave Safety Systems v Commissioner for Fair Trading, Department of Commence(( [2008] NSWSC 37, http://​www.austlii.edu.au/​cgi-bin/​sinodisp/​au/​cases/​nsw/​NSWSC/​2008/​37.html ))
 +        - SEARCH WARRANT – validity – whether investigator had belief on reasonable grounds that there was evidence of a breach of a provision of the Fair Trading Act 1987 – facts material to decision to issue or to decline to issue warrant – whether disclosure in application for warrant of reasonable grounds for a belief as to contravention – invalid issue of warrant.
 +        - Need to carefully consider relevant warrant issuing provisions in each case.
 +        - Summary of law, p64-71
 +        - Warrant too broad p93
 +        - Need to use Adobe Acrobat to capture evidence giving rise to ability to issue warrant in first instance.
 +     - Director of Public Prosecutions v Kear(( [2006] ​ NSWSC 1145 - http://​www.austlii.edu.au/​au/​cases/​nsw/​supreme_ct/​2006/​1145.html ))
 +        - A person who has in his or her possession child pornography is guilt of an offence(( S578B of the Crimes Act (NSW) )).  Child pornography means film.  Film includes cinematograph film, **...and any other form of recording**
 +        - Data was found stored in the temporary Internet cache folder 5000 images (p3).  The evidence was that the images were automatically recorded by browser when the defendant viewed the website. ​ There was no evidence that the defendant was aware that the images were **recorded** onto the computer’s hard drive in any form.
 +        - The prosecution conceded that it could not prove that the defendant was in **possession** of the images recorded on his computer in the absence of any knowledge that they were there. ​ The prosecution contended that the recorded images were evidence of the defendant’s use of the computer to view the images which themselves amounted to possession albeit temporary.
 +        - The Court found that he was not in possession on his computer because he was not aware of it being recorded. ​ The image when viewed by the defendant on the monitor was, merely the retrieval or reproduction of material stored in the jpeg file in the temporary Internet cache. ​ The visual image on the monitor was not itself a recording and, therefore, the defendant when viewing an image was not by that activity alone in possession of a recording.
 +        - Need to carefully consider wording of offence “possession” and consider broadening search to include backups, cds etc.  Insufficient evidence.
 +     - Oke v Commissioner of the Australian Federal Police(( [2005] FCA 1363 - http://​www.austlii.edu.au/​au/​cases/​cth/​federal_ct/​2005/​1363.html ))
 +        - a blanket claim of legal professional privilege over all computer records contained on a laptop seized pursuant to a warrant. ​
 +        - Oke applied for an injunction to restrain the AFP from inspecting the contents of the laptop computer. ​ Parties agreed upon an inspection protocol with the intention that it be made an order of the Court. ​ Examination and processing commenced without an order of the Court. ​ AFP was permitted to search the computer records by key word searches
 +        - Disputes arose as to the nature and extent of the notes taken by AFP as to the description (and, the applicant conjectured,​ the contents) of documents or files and the inspection process was abandoned. Injunction sought to enforce the agreed procedure
 +        - Court held – the agreement does not on its proper construction prevent the AFP from applying to the Court to vary the procedural process to which the Agreement relates. ​ The parties were given an opportunity to make further submissions as to what directions should now be given to identify the documents or files on the computer records which the applicant claims attract legal professional privilege, and to have them described to the AFP in a form which enables the AFP to indicate whether it accepts or disputes those claims. The disputed claims to privilege were to be resolved at a further directions hearing.
 +     - Trevor John Kennedy v Peter Baker and Australian Securities and Investments Commission(( [2004] FCA 562 - http://​www.austlii.edu.au/​au/​cases/​cth/​federal_ct/​2004/​562.html )), Kennedy v Baker (No. 2)(( [2004] FCA 809 (28 June 2004) - http://​www.austlii.edu.au/​au/​cases/​cth/​federal_ct/​2004/​809.html )), Kennedy v Wallace
 +        - Subsection 3L(1A) of the Crimes Act extends to taking an image of whole of the hard disk p66;
 +        - Scope of Warrant p16
 +        - See Claims for Legal Professional Privilege Guidelines p20, p96 (opportunity to claim)
 +        - See steps 24-28. p32, p35
 +     - Hart v Commissioner,​ Australian Federal Police [2002] FCAFC 392 (5 December 2002)(( [2002] FCAFC 392 http://​www.austlii.edu.au/​au/​cases/​cth/​FCAFC/​2002/​392.html ))
 +   - General Points
 +     - What evidence are you after images? documents? backups/​CDs?​ logs?
 +     - Draft warrant accordingly - consider third parties who may be holding evidence.
 +   - Software tools
 +     - Use Adobe Acrobat to collect a copy of the website viewed www.adobe.com
 +     - Use Google desktop (free) to do keyword searching\\ //**Desktop search**//​\\ //Search your computer as easily as you search the web with Google//\\ http://​desktop.google.com.au/?​promo=app-gds-au-v1-1
 +     - Use Google Enterprise to do keyword searching\\ http://​desktop.google.com.au/​enterprise/​index.html\\ //Find email, files, media, web history and chats instantly//​\\ //View web pages they'​ve seen, even when they'​re not online//\\ //View search results from your intranet, Google.com and their own desktop in one place//\\ //..Control content and enforce document retention policies//
 +     - Use other third party products ​
 +**MAY 2008**\\
 +**© White SW Computer Law 2008**
 +This article is a guide only and should not be used as a substitute for proper legal advice, readers should make their own enquiries and seek appropriate legal advice. ​

  © White SW Computer Law 1994-2019. ABN 94 669 684 644. All Rights Reserved.
  Liability limited by a scheme approved under Professional Standards Legislation
  This website is a guide only and should not be used as a substitute for proper legal advice.
  Readers should make their own enquiries and seek appropriate legal advice.
  For legal advice please email wcl@computerlaw.com.au