In the recent decision of Sun v He  NSWSC 802, Ward Cj in Equity examined the circumstances in which an individual may be guilty of criminal contempt in the context of failing to comply with a search order.
The judgment concerned a Notice of Motion (Contempt Motion) filed by the Plaintiff, Mr Sun, in which it was alleged the Defendant, Mr He, failed to comply with a search order made by Lindsay J (Search Order).
A key issue in the main proceedings had been identified as relating to differing versions of WeChat conversations (an application akin to the Whatsapp application and popular in China) between Mr Sun and Mr He. Mr He had been accused of modifying the conversations so that they did not truly reflect the true content of the conversations between Mr He and Mr Sun.
The Search Order was made with a view to resolving this key issue, and obliged Mr He to allow members of a search party, including experts and an independent solicitor to enter his premises and to remove into the independent solicitor’s custody, the things listed in the Search Order, being various electronic devices, including “things which reasonably appear to the independent solicitor to be the listed things and any things the subject of the dispute as to whether they are listed things.” The Search Order also obliged Mr He to assist the parties in so far as to do all things necessary to enable access to these listed things, including providing passwords.
Her Honour examined the chronology of events on execution of the Search Order in meticulous detail (see  to ) from the moment the independent solicitor (Mr Blaxell) arrived at Mr He’s property until the search was concluded. The chronology reveals, amongst other things, that:
- Mr He did not allow Mr Blaxell, or any of the search party into his property at the time of their arrival (approximately 10:10am) claiming, amongst other things, that he did not believe that they were who they said they were;
- Mr He took the Search Order into his premises and called his solicitor, Mr Leung, having declined Mr Blaxell’s offer to use his mobile phone, and in spite of Mr Blaxell’s advice that Mr Blaxell should be allowed entry, into the premises, while Mr He took legal advice.
- Mr He deleted various electronic records and conducted a “factory reset” of two mobile devices. One of these “factory resets” took place in the presence of one the expert witnesses who attended as part of the search party, which Mr He denied. A factory reset, “wipes” a device clean.
- Despite Mr Leung attending Mr He’s property he did not enter the property. While nothing turned on this, her Honour found this occurrence curious and said that Mr Leung may have been denied entry so that he was not in a position to witness the deletion of electronic records by Mr He.
- Mr He had deleted a vast number of files some of which were later found in his computer “trash can.”
Summary of findings
Ward CJ in Equity’s findings can be summarised as follows:
- Her Honour did not accept Mr He’s assertion that he was unaware that the Search Order, was in fact a Search Order. Her Honour noted that the Search Order was in standard form and that the penal notice on the front of the Search Order was in bold.
“…it is inconceivable that a reasonable person even superficially skimming this document would not realise it was (as it clearly states) a search order. I cannot accept that there is any reasonable doubt that Mr He was not aware this was a search order.” 
Her Honour, did not accept that Mr He would have been in a position to provide his counsel with instructions to vary/discharge the Search Order (which he did at the time of being served with the Search Order) and make submissions with respect to the prejudice Mr He’s businesses would allegedly suffer, if the devices subject to the Search Order were seized, without Mr He understanding that the Search Order was indeed a Search Order and what its terms were.
- Her Honour preferred Mr Blaxell’s evidence; that he explained, on more than one occasion to Mr He that Mr Blaxell was in attendance to supervise the search and seizure of documents and offered to explain the contents of the Search Order. Ms Shi, an interpreter, was also present, to assist Mr He. However, her Honour was satisfied that notwithstanding the presence of Ms Shi, Mr He understood Mr Blaxell, based on the fact that, amongst other things, he had been living in the country for 22 years and undertook his degree in English.
- Mr He gave various explanations for not allowing Mr Blaxell, and the search party, into his premises. Mr He deposed in his affidavit, that having grown up in China, people often pretend to be officials, in a bid to gain access to and rob your premises. Her Honour referred to Mr He’s first call to his solicitor, Mr Leung, in or around the time when Mr Blaxell came to execute the Search Order. Her Honour noted that Mr He must have been aware at the time of service that the documents were connected to the court proceedings with Mr Sun, that being the reason he called Mr Leung in the first place, and is “inconsistent with any belief that the people seeking access to his house were “government officials: there to make him disappear or “robbers.”” 
- Her Honour did not fully accept Mr He’s explanation that Mr He deleted the items in his “trash can” purely on the basis that the information contained therein was of a private nature, “such a concern does not abide the systematic deletion of files, including those in relation to these court proceedings.” 
- Her Honour preferred the expert witnesses’ accounts of the search of Mr He’s premises and believed the expert who witnessed Mr He factory reset of at least one of his devices. Her Honour also preferred Mr Blaxell’s version of events and noted that he had no vested interest in the proceedings.
- Her Honour also noted that by approximately 1:25pm on the day Mr He was served with the Search Order, Mr He accepted, that he was not allowed to delete his electronic records but did not think it necessary to divulge to Mr Blaxell the deletions he had previously conducted.
At the time of her Honour’s judgment on 26 June 2020, the passwords required to access Mr He’s online accounts, which would have fallen within the terms of the Search Order had still not been provided to the experts.
The Contempt Motion
The Contempt Motion was accompanied by a Statement of Charge. The Statement of Charge contained four charges against Mr He. That Mr He intentionally:
- destroyed electronic files;
- failed to facilitate access to his “iCloud” or other web based storage services and email accounts;
- refused access to Mr Blaxell for nearly three hours following service of the Search Order; and
- failed to disclose the whereabouts of electronic devices that may have contained any documents or records created in the consequence of the transmission of any communications between Mr Sun and Mr He by way of “We Chat” or other communications applications.
The Contempt Motion asserted that each of the above charges was carried out for the material purpose of preventing the information derived from the devices/records to be used as evidence in the proceedings and that Mr Blaxell and the search team were denied access for the purposes of Mr He destroying the things listed on the Search Order. Moreover, all of the above charges were said to have the inherent effect of interfering with the administration of justice.
The principles of criminal contempt
The general principles relevant to an application for contempt, and relied upon by Mr Sun, were expounded by her Honour at  to  of Mirus Australia Pty Ltd v Gage  NSWSC 1046.
The burden of proof in any contempt application rests on the party alleging contempt and must prove each element of the charge beyond a reasonable doubt (the criminal standard of proof). In so far as the effect on the administration of justice is concerned her Honour referred to the High Court’s decision in Lane v Registrar of the Supreme Court of New South Wales (1981) 148 CLR 245 at :
“An intention to interfere with the administration of justice is not necessary to constitute contempt; the critical question is whether the act is likely to that have the effect, but the intention with which the act was done is relevant and sometimes important.” (our emphasis)
Findings of the Court
Her Honour found, based on the evidence of the parties, that the charges levied against Mr He in the Contempt Motion, were proved beyond a reasonable doubt.
In relation to a second Notice of Motion filed by Mr Sun which sought, amongst other things, that some or all of Mr He’s (and the other defendants’) defences be struck out, her Honour was minded to strike out the defences in so far as they related to the “WeChat” conversations. However, her Honour did not engage in the process of determining what precisely should be struck out from the defences as an abuse of process, pending the sentencing hearing for the contempt charges.
Takeaways from this case
- Comply with the terms of a search order!
- Obstructive conduct and deletion of the things listed in the Search Order or which could reasonably fall within the remits of the search order, could lead to criminal contempt charges.
- You need not have the intention to interfere with the administration of justice for the Court to make such a finding. The Court will look at the effect of your actions.