News Corp journalist Annika Smethurst is challenging the police raid on her Canberra home in June this year, on the grounds the warrant used was invalid and seizures of evidence unlawfully obtained.
The raid followed three articles she wrote based on leaked classified documents that claimed Defence and Home Affairs were looking at expanding the powers of the Australian Signals Directorate (ASD) to spy on Australians domestically.
The raid and a subsequent one the next day on the ABC for unrelated stories has been described as a high stakes test for press freedom in Australia.
On Wednesday before all seven High Court judges, Solicitor General representing the AFP and government Stephen Donaghue QC challenged the unlawful raid claim and cited the Great Train Robbery of 1963, where the Royal Mail train was robbed by a gang of 15 including the infamous Ronnie Biggs and Bruce Reynolds.
Mr Donaghue told the court after the robbery the gang made their way to a barn, to hide and divvy the money, and came across a cat to which they gave a saucer of milk.
They then fled before police arrived. Police then sought to get fingerprints from the saucer but the farmer objected to them taking his property.
He also cited a more contemporary example of a stolen car used by robbers for a crime and when the car was later found abandoned the car owner demanding it back before forensic evidence could be gathered.
He said the administration of justice had to be done and “evidence of a serious crime” and rights of owners had to take second place.
Lawyers acting for Ms Smethurst argued the AFP should be forced to destroy evidence they extracted from her mobile phone with their raid warrant too “broad” to be valid and thus their raid tantamount to trespass.
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The AFP forced Ms Smethurst to pin open her phone so as they could copy material on it.
Stephen Lloyd SC, seeking a discretionary injunction also gave colourful anecdotes of his own to liken to the case, including what if he dug up his backyard and found a valuable manuscript and someone trespassed and copied all the pages to do with what they will.
He said if the High Court does rule the warrant was invalid, the AFP would have to destroy the copy of evidence they took.
“If police want to do their job properly they can issue another warrant,” he said, adding the case should not be a stalking horse for police “sloppiness”.
The court, he said, could not assume the phone or the case would be compromised which is what Mr Donaghue then argued would be the case if the phone then became lost or data misplaced and the warrant, while poorly worded, should stand.
The court heard the police investigation was continuing and a brief may be given to the DPP for charges consideration.
The High Court judges deferred a decision on the challenge to the validity of the raid until next year.