R v Facer[2005] QDC 374

[2005] QDC 374

DISTRICT COURT

CRIMINAL JURISDICTION

JUDGE ROBIN QC

Indictment No 2429 of 2004

THE QUEEN

v.

RICHARD GORDON FACER

BRISBANE

DATE 21/11/2005

ORDER

His Honour: Mr Curbishley, you are hoping to get the evidence of the conversation on the 24th of April excluded from the trial.

MR CURBISHLEY:  Yes, your Honour.

HIS HONOUR:  And you are hoping to get the hard drives excluded?  Is that right or not?

MR CURBISHLEY:  With the hard drives, yes, but-----

HIS HONOUR:  Is that the second part of your application?

MR CURBISHLEY:  Yes, but that-----

His Honour: And, realistically, there's not a case then, because that's where the computer games that are the subject of the charges are.

MR CURBISHLEY:  Yes, your Honour.

HIS HONOUR:  So that's obviously the most crucial part of the application.

MR CURBISHLEY:  Yes.

HIS HONOUR:  And the last part of this application is to keep out the Nicholson part of the evidence. It's listed for trial next week on an indictment containing three counts of knowingly possessing a child abuse computer game contrary to section 26C of the Classification of Child Abuse Computer Games and Images Act 1995.

The alleged offences came to the attention of police in an unusual way.  Mr Facer was already under their notice in connection with some surreptitious photographing of females, in particular under their skirts while they were using escalators and the like at a shopping centre.

In the course of the investigation police located filmed images of a mature lady showering at premises which I understand were Mr Facer's. That material was shown to a woman named E J who resided at … with Mr Facer. She became alarmed that similar images of herself might have been made and preserved. She attempted to access Mr Facer's computer which was in his bedroom and ascertained that there were files there named "E…" and "J…" which she took to refer to herself, although there is some discrepancy in spelling as to whether a "C" or "K" is used. Not knowing the relevant password, she was unable to access files which, so far as details called up on the monitor went, were labelled "E…" and "J…". She apparently noticed two hard drives in the computer tower.

Police determined there was a potential offence of stalking involved. A warrant was obtained to authorise a search of the premises. This was undertaken doubtless after consultation with E J at a time when it was thought Mr Facer wouldn't be there. That supposition was correct. Also missing were the two hard drives.

I accept the evidence police officer Zerner gave that Ms J became distraught at the prospect that images of her of the kind mentioned might be made available to the general public via the internet.

He determined to act quickly to try to prevent any such thing from happening.

The assumption was that Mr Facer could be located at his work, and that's where his vehicle would be. The reasonable assumption was made that that may be where the missing hard drives were.

No steps were taken by Zerner to obtain a tape-recorder for the purposes of complying with section 263 and following of the Police Powers and Responsibilities Act 2000. Zerner told the Court that the police systems for controlling police property are such that he would have to have returned to his own station at Indooroopilly to obtain a tape-recorder. I accept that he wasn't expecting any particularly important conversation to take place at the work location in Bowen Bridge Road or Lutwyche Road. I accept that he was also concerned not to delay his mission to protect Miss J's privacy from the risk which the two of them apprehended.

Mr Curbishley, appearing for Mr Facer, was justifiably critical of the aforementioned arrangements for custody and issue of tape-recorders. I would think that in this day and age it ought to be possible for police vehicles to be appropriately equipped, it might even be possible to use mobile telephones and the like for achieving the recording which is nowadays properly required to provide as much assurance as there can be that the reprehensible practice of verballing doesn't happen.

The conversation that happened at Mr Facer's work was fairly brief.  Twenty or 30 minutes after it Mr Zerner says he made the record in his police notebook.  By the time he did it he was back at the station.

The conversation begins with Mr Facer's denying that there was anything on the computer relating to E… and J…. Zerner's report that the hard drives were missing when he took the computer supposedly elicited information that they had been "dumped" because they were "stuffed". Zerner reported E J's advice that the previous night they had been working. Mr Facer stuck with what he said.

Zerner then said something along the lines, "I'm looking for the hard drives and I'm going to do an emergent search of your vehicle."  At that point Mr Facer supposedly said that one of the hard drives had been reformatted, there was nothing on it, "It's not an offence to have pornography on your computer."  Perhaps with prescience Zerner claims he then said, "Not as long as it's not child pornography."  The two of them then went to the vehicle and before long the two hard drives were recovered, which Zerner took away.

At that stage his primary interests were still material to do with E J and the other woman.

The first part of Mr Facer's application seeks to ensure that that evidence of the conversation which should have been tape-recorded but wasn't does not get to the jury at next week's trial.

Section 266 of the Police Powers and Responsibilities Act applies here.  It provides:

"(1)Despite sections 263 and 264 the Court may admit a record of questioning or a record of a confession or admission (the record) in evidence even though the Court considers this division has not been complied with or there is not enough evidence of compliance;

1. (2)
   however the Court may admit the record only if, having regard to the nature of and the reasons for the non-compliance and any other relevant matters, the Court is satisfied in the special circumstances of the case admission of the evidence would be in the interests of justice".

Mr Mumford, prosecuting, referred to Duong [2002] 1 Queensland Reports 502 in which Mackenzie J acted under a predecessor provision in a murder case to permit evidence obtained in disregard of relevant rules to be presented before the jury.

There are no standard rules to apply, of course, every case depends on its circumstances and among those influencing his Honour was the presence of a trusted associate to look to the accused's interest, he contending that by reason of the ingestion of drugs it wasn't appropriate to proceed with the interview. His Honour considered, having heard the tape, that Duong appeared to be capable of making rational judgments about how to handle himself.

Here no caution was administered to Mr Facer. The value of the conversation to the Crown if the evidence is admitted is peripheral in the sense that there's no confession in it, rather it may be seen as lies told out of Court in the consciousness of guilt and/or in an attempt to divert police from obtaining access to the hard drives which, if there's anything in the Crown case, contained material exposing Mr Facer to prosecution but not at all of the kind that the police were searching for.

Mr Curbishley has assembled High Court authorities, in particular Kelly, 78 ALJR 538, and Nichols [2005] 213 ALR 1, confirming the importance of insistence on the Police Powers and Responsibilities Act provisions in the interests of ethical policing, which, of course, is very much in the general public interest.

A supplementary submission refers to what Pincus JA said in Hayes, CA 319 of 1998.  I quote:

"In situations such as that in which the appellant was interviewed at the hospital commonsense dictated that the police interview be properly, ie electronically, recorded. It must have been evident that there was a prospect that the appellant would be charged with dangerous driving causing grievous bodily harm. Why police in such circumstances persist in the unsatisfactory practice of relying on a recollection of incriminating conversation written in a notebook is not easy to understand. Apart from the uncertainty as to whether this appellant was fit to be interviewed, the failure properly to record the incriminating interview should, in my view, have been taken into account in favour of the appellant in considering what of the evidence could fairly be let in."

Although Mr Zerner's partner initialled his notes, Mr Facer was given no opportunity to do so or even to learn of their contents.

I hasten to say that I'm not doubting the essential accuracy of the notes. I note that no challenge in that regard was made by Mr Curbishley in his cross-examination. Also I accept the genuineness of the motives that Mr Zerner professed in what appeared to be a situation of urgency, and I don't think he intended anything underhand, untoward or tricky.

I think there's an important public interest in ensuring that police officers understand there is a real possibility that evidence they think important obtained in breach of the requirements of the Act will be excluded because of that breach, thus jeopardising the prospects of a favourable outcome in the Court of their work.

In my opinion the "interests of justice" in section 266(2) include factors tending against letting the evidence in, such as those arising under the Act, as well as factors tending towards letting the evidence in, which may have operated in a case such as Duong where the charge was murder.

On this occasion I'm of a view that the Court should not act under section 266 to let in evidence of that conversation.

The next challenge is to the "search" which was conducted of Mr Facer's vehicle.  The warrant which was used at 169 Hale Street related only to the premises.  That's the residential premises and not to the vehicle.

Mr Zerner may have learnt from this incident but it's difficult to be critical of him for not getting a wider warrant initially.

Whether or not he was justified in "searching the vehicle", which from some points he may not have technically done, the practicalities, as he conceded, were that he was determined to take possession of the hard drives if they were there, in which circumstances Mr Facer was cooperative.

The situation is governed by section 76 and following of the Act. Section 77 authorises a search to prevent loss of evidence if a police officer reasonably suspects, (a), "a thing at or about a place or in the possession of a person at or about a place is evidence of the commission of a Part II offence", and (b), "the evidence may be concealed or destroyed unless the place is immediately entered and searched". A Part II offence covers, among other things, any indictable offence.

Mr Curbishley's argument against the applicability of section 77 was that in Zerner's belief there couldn't have been a reasonable suspicion that the evidence may be concealed or destroyed because the fear in his mind was that the evidence would be used to get images onto the Internet.

I prefer Mr Mumford's analysis of the situation on this point. I think that the contents of the conversation as summarised above, which should not be overlooked for this purpose, although they won't get to the jury, in all probability, could be relied on by Zerner.

The references to "dumping" the hard drives in my view were capable of founding a reasonable suspicion that Mr Facer might try to dispose of them.

The steps required by sections 78 and 79 were pursued on the day following the intervening [2002] Anzac Day holiday.  A Magistrate made the requisite order under section 79 to authorise retrospectively what Mr Zerner called the "emergent" search.

Of course in these circumstances what was located on the search once the material had been examined by persons qualified to do it was something rather different from what had been looked for. Zerner's assurance in the conversation that, "If there is nothing to do with E or J, that's the end of the exercise and I'll hand the computer back", became somewhat inappropriate. It was not adhered to in the circumstances, and I suppose correctly so. I decline to accede to that part of the application which seeks to keep out of evidence the hard drives on the basis that they were procured in an unlawful search. [A similar distinction between the "real" evidence and oral evidence of statements was made in NA Scott, CA 251 of 1992, BC 9202545.]

The third aspect of the application concerns the evidence of Ms Nicholson who formerly lived with the defendant. She was accessing his computer sometime around the latter half of the year 2000 when, according to her, she found a folder containing pornographic pictures of children. Mr Mumford from the Bar table has expanded on this by indicating the pictures were of children around a Christmas tree with semen smeared on their faces. The prosecution seek to use Ms Nicholson's evidence to negative the idea that it was without any active participation or knowledge by Mr Facer that material got on to his computer. That is the explanation he gave her which apparently she accepted.

Mr Curbishley submits that the evidence is highly prejudicial, that it is no more than propensity evidence which ought not to be let in. Of course the witness did not print out the material she says she saw. There is only her recollection of the nature of it available.

Judges are accustomed to warning juries about propensity evidence. It must be assumed that juries understand and respect such warnings. I am of the opinion that for the purpose indicated by Mr Mumford Ms Nicholson's evidence is admissible.

Does that cover the three points?

MR MUMFORD:  Yes, thank you, your Honour.