The Queen v Bailey[2010] QDC 547

DISTRICT COURT OF QUEENSLAND

THE COURT RESUMED AT 3.02 P.M.

HIS HONOUR:  I can't suggest to anybody that what's about to be delivered is going to be anywhere near as enjoyable or entertaining as what we saw on the screen before we resumed. But here goes.

The Crown has presented an indictment against the applicant, Anthony James Bailey, alleging one count of using a carriage service to access child pornography material between the 3rd day of August 2006 and 16 May 2008, and one count of knowingly possessing child exploitation material on 15 May 2008. The first charge is brought under the Commonwealth Criminal Code and the second under the Queensland Criminal Code.

Mr Byrnes on behalf of the applicant seeks the exclusion of all evidence gathered as a result of the search conducted on 15 May 2008 and the interview conducted during the search on the 15th of May 2008. The search warrant executed on 15 May 2008 was obtained by virtue of an application made to a Magistrate by Senior Constable Fan. He in fact had made an earlier application and obtained a search warrant which had not been executed. His evidence was that he received a file containing the application and a draft search warrant electronically. He modified it so it had his name on it. He then printed and swore it.

The first application was made on 2 May 2008. As I have said, this warrant was not executed. Accordingly, he swore an application in the same terms on 9 May 2008. That application is Exhibit 2. As a result, a search warrant which is Exhibit 3 was issued by another Magistrate on that date.

The application was based on information as follows:

3. (1)
   on 14th September 2006 the Australian Federal Police (AFP) received a referral from Interpol Wiesbaden advising that a number of Australian-based internet protocol numbers (IPN) had been identified as having access to child pornography files from the website www.swoopshare.com;

3. (2)
   on 29 November 2006 the AFP received copies of the two child pornography files and associated documents (IPN addresses) referred by Interpol Wiesbaden, in September 2006;

3. (3)
   at the request of the Bavarian State Criminal Police the operator of the website swoopshare.com removed the video file titled Kelly+09+02.kgb and video file titled Thailand.kgb and provided police the IPN addresses of the users who had accessed these files;

3. (4)
   the file Kelly-09-02.kgb is of a pre-teen (approximately 12 years of age) blonde girl. The file Thailand.kgb shows the sexual abuse of a pre-teen (approximately 10 years of age) Asian girl.

3. (5)
   in December 2006 the AFP served a section 282 Telecommunications Act 1987 request on the internet service provider (ISP), Telstra Bigpond requesting the provision of subscriber, user and account information for the IPN address 144.131.210.197  for 07:26P.M. (AEST) on 21 July 2006. The IPN address was recorded by the website swoopshare.com as having downloaded the Kelly09-02.mpg file;

3. (6)
   Telstra Bigpond results of the IPN address 144.131.210.197 for the time in question revealed that the account holder is Anthony James Bailey with an address of 49 Venner Road, Annerley, Queensland, 4103, with a user account name of [email protected] and with a home telephone of 07 3848 6180;

3. (7)
   Detective Senior Constable Ravlich, R-A-V-L-I-C-H, of Taskforce Argos, State Crime Operations Command, has viewed the Kelly09-02.mpg file and found it to contain material as described by the AFP;

3. (8)
   Police computer and intelligence enquiries reveal that Anthony James Bailey, date of birth 29/08/1964 is recorded as residing at 12 Horatio Street, Annerley, with the same phone number 07 3848 6180;

3. (9)
   Under section 228D of the Criminal Code, it is an offence to possess child exploitation material. Child exploitation material is described under section 207A of the Criminal Code as [the definition is then set out].

3. (10)
   There is an ability to save child exploitation material images from a person's computer to a digital camera memory stick, thus allowing the person to view these images through their digital cameras. For this reason, this type of property is sought to be seized and examined.

3. (11)
   It is reasonably believed that a search of the within mentioned premises will locate the mentioned property, which upon examination, afford evidence of the nominated offences.

The within mentioned premises is 12 Horatio Street Annerley. I have not set out in detail the full description of the contents of the files that were identified in paragraph 4 of the application.

The search warrant states that the Magistrate after hearing the sworn application by Plain Clothes Senior Constable Fan was satisfied that there are reasonable grounds for suspecting that evidence of the Commission of the offence is at the place detailed as 12 Horatio Street Annerley. And it particularises that the warrant is issued in relation to an offence as follows, "Possess child exploitation material. Section 228D. Criminal Code. That on the 24th day of July 2007 at Brisbane in the State of Queensland one Anthony James Bailey knowingly possessed child exploitation material, namely computer generated images." 

The details of the evidence that may be seized under this warrant was particularised as follows,

"• All storage media including hard disks, tapes and other removable media, and any other devices containing programs or data capable of storing photographs or computer images.

• Any computer hardware or software deemed necessary to gain access to data or programs contained on the aforementioned storage media.

• All computer hardware and peripheral equipment, which has or may be used in the copying of child exploitation material.

• All documentation, including manuals, guides and other references which provide information necessary for the proper operation of the computer hardware, software and peripheral equipment.

• All computer printouts and other documents relating to child exploitation material.

• Any documentation or books that may contain passwords to access the computer or storage media.

• All digital camera storage media and digital cameras."

The search warrant was executed on 15 May 2008 by Plain Clothes Constable Voysey in company with Detective Senior Constable Gallagher. Although Detective Gallagher was the senior officer it was Plain Clothes Constable Voysey who actually executed the search warrant and did most of the talking to the applicant.

Detective Gallagher's focus was on actually conducting the search of any computer found at the residence. The execution of the warrant and the subsequent search was recorded contemporaneously on a tape recording which is Exhibit 5. A transcript of that recording was tendered and is Exhibit 4.

In Mr Byrnes' outline of submissions reference was made to the original 2 May 2008 warrant being included in the brief of evidence and to the execution page of that warrant being completed and attached to the 9 May 2008 warrant. However Plain Clothes Constable Voysey's evidence was that the first of these matters arose due to his inadvertence and the second arose because the execution page was not attached to the 9 May 2008 warrant at the time of its execution, and it was the execution page which was originally provided with the 2 May 2008 warrant which was completed and attached to the served 9 May 2008 warrant. I withdraw that and make that and executed May 2008 warrant.

I accept Plain Clothes Constable Voysey's evidence about this, having had the opportunity to observe him as a witness. For reasons which will become apparent I have found that he has made frank concessions during his evidence, even to the extent of being against the interests of the prosecution case upon this application. This supports his credit on this issue.

Ultimately Mr Byrnes did not refer to this point in his final submission and nothing turns on it. After introductions, the applicant was told he was detained and was not free to go anywhere. It was emphasised that he was in the custody of the police officers. He was given a copy of the warrant. He then asked for and was granted permission to get his glasses. He was next given a notice to occupier which was Exhibit 6. He was then informed of his right to silence. This was at about two minutes and 15 seconds after the police had originally introduced themselves.

He said that he understood the meaning of the caution that he was given. No point is taken by Mr Byrnes about this. It is accepted that the caution was made in substantial compliance with the requirements of section 37 of the Police Responsibilities Code 2000 (the Code) which is schedule 10 to the Police Powers and Responsibilities Act 2000 (the  Act). 

The applicant was then told of his right to contact a friend or relative and his right to contact a lawyer. He also said that he understood this. However, Mr Godbolt, for the respondent, frankly and fairly concedes that this explanation of his rights was not in substantial compliance with section 34 of the Code.

It took 30 seconds to explain both the caution and his rights to contact a friend, relative or lawyer to him. Plain-clothes Constable Voysey then explained what the warrant was about in these terms:

"Mate what the warrant's about, it's about possession of child exploitation material. All right?  Be it on some sort of computer or some sort of storage device relating to a computer. Do you understand?  Now if you have any, obviously I introduced ourselves before, the senior officer here is Detective Senior Constable Shaun Gallagher so if you have any queries direct them to him."  The applicant responded, "All right" before Plain-clothes Constable Voysey continued by telling him that one of his obligations under the search warrant was to state his full name and address.

He then asked the applicant if he had a driver licence or something like that handy. Although the applicant was told that this could be obtained later, he immediately produced the driver licence, as I interpret the tape-recording with the assistance of the transcript.

The applicant was then asked a number of questions about the computer at the residence. By this time four minutes had passed since the introductions. It is passages of this interview which Mr Byrnes submits should be excluded on the exercise of the public policy discretion which arises from the decision of the High Court in Bunning v Cross (1978) 52 ALJR 561. The passages which he submits should be excluded are particularised in Exhibit C.

Mr Godbolt accepts that what the applicant said in the interview and which is the subject of Mr Byrnes' objections on behalf of the applicant is important to the Crown case because it is the only way the prosecution can properly isolate the applicant as the only user who was able to download the child exploitation material which was ultimately located by Mr Robertson, a forensic analyst, on the hard drive of the computer, which was removed from the applicant's residence pursuant to the search warrant.

I admit Mr Robertson's statement which was provided to me during the course of these proceedings as Exhibit 9. The statements of Plain-clothes Constable Voysey and Detective Senior Constable Gallagher are admitted as Exhibits 7 and 8 respectively. They have also been available to me during the course of this application.

The statement from Plain-clothes Constable Voysey establishes that on 16 May 2008 he conducted an inspection of the applicant's computer and also located multiple image files and video files containing child exploitation material on the hard drive. I also note that on 24 May 2008 the defendant attended the Morningside Police Station. Plain-clothes Constable Voysey offered him the opportunity to be interviewed in relation to the outcome of the examination of his computer. The applicant refused to take this opportunity.

Other relevant statements by the applicant during the interview which are the subject of objection and to which Mr Godbolt has not expressly referred would also seem to be important to the prosecution case as they can be construed as admissions by the applicant of downloading what he described as soft core porn, including child exploitation material which he said he had deleted. It is against this background that the application is to be considered.

Referring first to the argument that all evidence gathered as a result of the search conducted on 15 May 2008 should be excluded, it is submitted that the warrant could not validly have been issued on 9 May 2008 because:

• There was nothing in the application such as to give rise to a reasonable suspicion that evidence of the offence could be found at the address in question; and

• The particulars of the offence, namely the date, were incorrect.

The first of these issues relates to the requirement under section 151 of the Act that:

"The issuer may issue a search warrant only if satisfied there are reasonable grounds for suspecting evidence of the commission of an offence or confiscation related evidence -

2. (a)
   is at the place; or

2. (b)
   is likely to be taken to the place within the next    72 hours."

It is section 151(a) which is relevant in this case.

As I understand it, the submission is there was no basis for the Magistrate who issued the search warrant to form a reasonable suspicion that evidence of the offence particularised in the warrant could be found at the address in question because the address assigned to the account belonging to Mr Bailey on 21 June 2006 was different to the address at which he was living in May 2008 and there is nothing in the application pertaining to the date of the offence which is particularised in the warrant as having occurred on 24 July 2007.

In relation to the date, I refer to the cross-examination of Senior Constable Fan at page 1-18 of the transcript as follows:

"Now, it contains a description of the - the offence?‑‑ Yes.

And it particularises that the offence occurs on the 24th day of July 2007?‑‑ Yes.

You accept that?  How did that date come to be there?‑‑ That - that date would have been on the file when I received it.

Okay. You didn't check the draft warrant to see that the information in relation to the offence matched the information in your application?‑‑ I - I did check it, but I missed that.

Does the 24th day of July 2007 have any significance?‑‑ No, it doesn't."

That evidence was given with reference to Exhibit 3 which is the search warrant. I accept that as Mr Byrnes submits the law on this issue is neatly summarised in the decision of Holmes J in Dobbs v Ward [2003] 1 QdR 158. In that case, citing George v Rockett [1990] 170 CLR 104, her Honour said at 163:

"The statutory requirement of "reasonable grounds" for suspicion is a requirement of the "existence of facts which are sufficient to induce that state of mind in a reasonable person". Suspicion itself is "a state of conjecture or surmise where proof is lacking"".

Her Honour also held, citing Hope v Bathurst City Council [1980] 144 CLR 1 that whether the formation of the view that there were reasonable grounds for suspicion was open at all on the facts is a question of law, not merely of fact. Mr Byrnes submits in this case the basis for issuing the search warrant does not reach this standard as it demonstrates no more than the merest possibility of the existence of matters about which the Magistrate was required to have a reasonable suspicion.

In response, Mr Godbolt submits that information in the application which he identifies clearly provides reasonable grounds for a belief that a search of the items listed on the application at the address to which the search warrant was directed would reveal evidence of the commission of an offence under section 228D of the Criminal Code. Although he refers to reasonable grounds for believing, in context I take this to be a submission that there were reasonable grounds for suspecting evidence of the commission of an offence was at the place in question, because this is the standard to which the Magistrate must be satisfied.

The information contained in the application on which he relies is:

• the police had information that a certain file (Kelly-09-02.kgb) had been downloaded by a particular internet protocol number at 7.26 P.M. on 21 July 2006;

• The file contained material that could properly be described as child exploitation material.

• Checks performed under the Telecommunications Act [1987] for account details for the particular IPN in question showed the holder as being Anthony James Bailey of 48 Venner Road, Annerley with a telephone number listed as 07 38486180.

• Enquiries reveal that Anthony James Bailey resided at 12 Horatio Street, Annerley (the address the subject of the warrant application) with a telephone number 07 38486180.

He goes on to submit that whilst it is clear almost 22 months had passed between the date when the file was downloaded and the date the application was made for the warrant, it would be reasonable to infer that the material downloaded by the computer (an item of not inconsiderable value) nonetheless remained in the possession of the applicant.

It is important to note that paragraph 10 of the application placed information before the Magistrate that there is an ability to save child exploitation material images from a person's computer to a memory stick. Consistently with this, the description of the nature of the thing sought that is reasonably suspected of being evidence of the commission of the offence or confiscation related evidence in relation to the confiscation related activity, was stated in the application to include all storage media including hard discs, tapes and other removable media and any other devices containing programmes or data capable of storing photographs or computer generated images.

Further, the Magistrate was not required to consider the search warrant application and his decision as to whether he held the requisite reasonable grounds for suspicion in a vacuum and was entitled to use knowledge, which is notoriously available to any informed member of the community as to the ability to save and store material downloaded from the internet on a number of media, conveniently described as storage media, including memory sticks and other media referred to in the application.

In these circumstances, the Magistrate could properly have had reasonable grounds for suspecting that the Kelly-09-02.Kgb file, however it was described, was downloaded on 21 July 2006 and the images on that file remained in the possession of the applicant on 9 May 2008 at his new address. And, as such, those images would have been in his possession during that whole period, including on 24 July 2007 which is the date of the particularised offence to which the warrant relates.

The submission in relation to what may appropriately be described as the particulars requirement is that there is a failure to particularise the actual file which the police believed had been downloaded. This particular could easily have been given according to that submission. It is further submitted there is also the fact that the particular as to date was almost a year out from the date in question. It is submitted this leads to one of two conclusions, either the warrant was improperly granted as there was nothing in the application relating to an offence on that date or the warrant is invalid on its face as the wrong particulars have been supplied and the absence of specific particulars renders the warrant a general warrant.

In relation to this, section 156 of the Act provides:

1. “(1)
   The search warrant must state -

...

2. (b)
   If the warrant is issued in relation to -

2. (i)
   an offence - brief particulars of the offence for which the warrant is issued;".

Mr Byrnes refers to Wright v Queensland Police Service [2002] 2 QdR 667 where Holmes J said with reference to this requirement at 678:  "To ask more than a mere specification of the offence itself is not to impose a crippling requirement on applicants for search warrants. The legislature in imposing the requirement that brief particulars be given was, in my view, setting a minimum standard not difficult of achievement, but constituting an essential safeguard for those who might be affected by the execution of warrants. I conclude, therefore, that the requirement is mandatory and that non-compliance with it renders the warrant invalid".

I have already concluded that the warrant was not improperly granted because there was nothing in the application relating to an offence on 24 July 2007.

As is clear, the whole nature of the application was that the downloaded child exploitation material remained in the applicant's possession from 21 July 2006 to and including 9 May 2008, which included 24 July 2007.

In these circumstances I also consider that by alleging this date in the statement of the offence to which the warrant relates, specific particulars have been supplied and they are not wrong particulars. If anything, they are in the applicant's favour by limiting the search to evidence of an offence of possession of child exploitation material that was in existence on that date.

Therefore the issue is whether the warrant is invalid because of a failure to particularise the actual file that the police believed was downloaded on 21 July 2006. Mr Byrnes submits that this particular was required to be given because it was available, and failure to provide that particular results in the warrant being wider than it should be. However he frankly accepts that there is no authority to this effect.

The decision in Wright does not go this far. That was a case where the statement of the offence was restricted to its section number and short title. Holmes J referred to the legislature setting a "minimum standard."  It is this minimum standard which must be achieved and not some ideal standard.

I consider it has been achieved in this case when reference is also said to her Honour's convenient summary of the principles deriving from her decision in Wright and other authorities in R v. Christensen [2005] QSC 279 at [8], as follows:

"In that context it is reasonable to construe the requirement for a statement of 'brief particulars of the offence' as directed to ensuring that an individual affected is able to discern from the warrant itself the scope of the search authorised by it. I have discussed elsewhere the divergence of view as to whether the purpose of stating the offence in the warrant is to enable those affected 'to know the exact object of the search' or, more broadly, the 'area of search.'"

I consider that the search warrant in this case provides brief particulars of the offence to enable the applicant to discern the scope of the search authorised; that is, child exploitation material in his possession on 24 July 2007.

I also consider that to adopt the language of Callinan and Crennan JJ in New South Wales v. Corbett [2007] 230 CLR 606 at [106], on reading the warrant one can clearly understand the objects of the search and appreciates the "boundaries of the authorisation to enter, search and seize."

It was far removed from the situation in Christensen where the description of the offence could not have set any rational parameters for the search. It identified no suspect, gave no particular as to the place of offending beyond "Brisbane" and gave a particular as to time which was nonsensical; although issued on 22 July, the warrant purported to relate to an offence on 24 July. The details of the evidence which could be seized, including an array of drugs other than methylamphetamine, bore no obvious relation to the offence alleged, therefore Holmes J could say in that case, the warrant was hopelessly wide and obscure and was bad for that reason alone.

As I have said, this is not the case here. The warrant issued by the Magistrate provided particulars that were more than a bare specification of the offence. As was decided in Beneficial Finance Corporation v. Commissioner of the Australia Federal Police [1991] FCR 523 at 533, the description of the offence in a search warrant need not be made with the precision of an indictment.

An indictment for the offence of being knowingly in possession of child exploitation material would not require particulars of the description of the file said to be in possession of the defendant to be included. This would normally be left to be the subject of particulars requested independently of the indictment itself. I note that the indictment in this case does not include any such particular.

In the circumstances, I do not consider that there was any failure to comply with the particulars requirement under section 156(1)(b)(i) of the Act. Therefore, I do not find the warrant to be invalid and I do not exclude the evidence gathered as a result of its execution.

This still leaves the issue as to whether the applicant has satisfied me that the interview conducted during the search on 15 May 2008 should be excluded in the exercise of the public policy discretion arising from Bunning v. Cross.

I take it that this is what Mr Byrnes is referring to when he submits the interview should be excluded on the grounds of fairness because he makes that submission on the basis of The Queen v. Ireland (1970) 126 CLR 321 which is considered and applied in the later case of Bunning v. Cross.

He submits there are two grounds for the exercise of this discretion. The first is that whilst the applicant was informed of his right to silence this was done in a rushed fashion and immediately after his rights were explained to him he was told that "one of his obligations" was to inform the police of his name.

It is then said that later in the questioning he was informed (correctly) that he had to inform the police of any passwords or means of accessing encrypted information. It is submitted that in circumstances where the warrant compels the disclosure of certain information it should be made very clear to a person who is detained in their home which questions they must answer and which questions they may freely decline to answer.

Notwithstanding this submission which is contained in the written amended outline of argument, as I understand it, the basis which was really advanced by Mr Byrnes in his oral argument for the exercise of this discretion in favour of exclusion of those parts of the interview which he has identified, was that while the applicant was informed of his right to contact a friend, relative or lawyer he was afforded no opportunity to exercise those rights. Reference is made to R v. Adamic (2000) 117A Crim R 332.

It is argued that the questioning was inherently unfair due to the manner in which it occurred. In support of this, it is submitted that plain clothes Constable Voysey did not give the applicant any opportunity to consider his position, and proceeded to commence questioning including questions about matters that he was required to answer.

Although, as I have said, I understand it is this failure in relation to the requirement under section 34 of the Code which Mr Byrnes relies on in support of his argument, that is not to say the other matters he referred to in relation to the reality of the right to silence are not relevant to this issue.

Section 418 of the Act provides:

1. “(1)
   Before a police officer starts to question a relevant person for an indictable offence the police officer must inform the person he or she may -

2. (a)
   telephone or speak to a friend or relative to inform a person of his or her whereabouts and ask the person to be present during the questioning; and

2. (b)
   telephone or speak to a lawyer of the person's choice and arrange, or attempt to arrange, for the lawyer to be present during the questioning.

1. (2)
   The police officer must delay the questioning for a reasonable time to allow the person to telephone or speak to a person mentioned in subsection (1)."

Section 431 of the Act provides:

"A police must, before a relevant person is questioned, caution the person in a way required under the Responsibilities Code."

Section 34(1) of the Code then states:

"If a police officer must advise a relevant person of his or her right to contact a friend, relative or lawyer, the advice the police officer gives must substantially comply with the following -

'You have the right to telephone or speak to a friend or relative to inform that person where you are and ask him or her to be present during questioning. You also have the right to telephone or speak to a lawyer of your choice to inform the lawyer where you are and to arrange or attempt to arrange for the lawyer to be present during the questioning. If you want to telephone or speak to any of these people, questioning will be delayed for a reasonable time for that purpose. Is there anyone you wish to telephone or speak to?'"

Mr Godbolt fairly concedes that section 34(1) of the Code is applicable in this case, because Plainclothes Constable Voysey was not only exercising a power of detaining the applicant for search at the relevant time, and therefore section 215(2)(a) of the Act does not apply to exclude the operation of Part 3 of the Act which includes sections 418 and 431. When I refer to Part 3 this is a reference to Part 3 of Chapter 15 of the Act which is concerned with powers and responsibilities relating to investigations and questioning for indictable offences.

Mr Godbolt also fairly and frankly concedes that Plainclothes Constable Voysey did not substantially comply with section 34 because, after explaining his rights to the applicant to communicate with a friend, relative or lawyer, he did not tell him that if he wanted to exercise that right by telephoning or speaking to any of those people, questioning would be delayed for a reasonable time for that purpose. He also did not ask him if there was anyone whom he wished to telephone or speak to. He accepts it is not enough to simply inform the applicant of the nature of his rights, and in failing to substantially comply with section 34 Plainclothes Constable Voysey has failed to comply with an important requirement.

Before I proceed to consider Mr Godbolt's further submission that notwithstanding this the public policy discretion should not be exercised to exclude the portions of the interview which have been identified by Mr Byrnes, it is relevant to consider the evidence which was given before me on this issue.

Plainclothes Constable Voysey gave the following evidence at pages 1-26 to 1-27 of the transcript:

"Mr Byrnes: You're familiar with the provisions of the Police Responsibilities Code?‑‑ Some of them.

Specifically when you're informing people of their rights to communicate with friends, relatives or lawyers and as we heard you just do, you informed him, 'You've got the right to contact,' but on a - on a search, is it your usual practice to inform people that there can be a reasonable delay if they want to contact people?‑‑ It's something you can ask the person you're executing a search warrant on if you want to.

And is it your - well, what - didn't he - you say to Mr Bailey was that you didn't ask him whether there was anyone he wished to telephone; do you agree - agree with that?‑‑ I agree with that.

Yeah, and you agree and I - again I'm not quizzing you here, I can show you in section 34 of schedule 10 of the Police Powers and Responsibilities Regulation, but you accept that the suggested form of words in the Police Responsibilities Code is that you ask that question of a person after informing them of their rights to contact people?‑‑ I'd accept that, yes.

And I'm looking at page 4 of the transcript. Was it the case that, well, sorry. I withdraw that question. Was it the - was there any particular reason why you didn't ask that question?‑‑ I - I can't think of any reason at this point in time, no.

If I suggested that perhaps you could - you should have, do you have any comment on that?‑‑ Well, if it's - the suggested wording in the PPRA, then, yes, I should have complied with that wording."

The applicant gave evidence-in-chief relevant to this issue at pages 1-9 to 1-10 of the transcript. He said that he was initially shocked when the police arrived. He accepted that Plainclothes Constable Voysey had handed him a copy of the search warrant, and after getting his glasses he read the heading with his name and the officer's names and so forth. He said that is really about as far as he got.

That is not inconsistent with the transcript of the record of interview where, at page 50, the applicant made reference to what he described as "those couple bits of paper you gave to me". Plainclothes Constable Voysey responded by asking him "have a read of 'em". The applicant apparently read the search warrant and at this stage said, "Oh, okay, 24th of July it says, says this warrant is issued in relation to an event."

The applicant also said "It all sort of happened rather quickly and I was being asked questions and I just - I didn't really get a chance to - to read the document fully."  He was then asked the following series of questions which, together with the answers, were:

"Now, what was your recollection about the - although we have just heard it, but what do you remember about being told your rights?‑‑ Well, I - I - I do  remember them firstly explaining, you know, they had - what my rights were and so forth, and - and it was - and, yes, I just - it just went on from there. I didn't - I was sort of trying to focus on what - what was being asked of me at the time.

You were told about your right to contact, with family friends or solicitor?‑‑ Yes, I was.

Now, were you at any time given a - asked whether you wanted to contact any person - any such person?‑‑ I don't recall being - being given the opportunity to actually make a phone call. I was told I could, but things sort of went on from there, and there wasn't really a chance to - to - to think about who I would call or - or make the call, in fact."

He was also asked whether if he had been asked if he wanted to make such a call as to what he could now say he would have done. He replied:  "I guess it's a - a difficult question in hindsight. Without having had the benefit of - of making a balanced choice at the time, probably in light of the charges. I may have elected to - to get some advice on that point."

He was cross-examined by Mr Godbolt and I refer to his evidence at pages 1-11 to 1-13 of the transcript. He said that he went to his office and got his glasses. He also said he was given a statement to occupier and was informed that he had the right to remain silent. He said that he understood what the police were saying at that time and he told them at the time he did, in fact, understand.

He also said that he understood what had been explained to him about having a right to contact the friend, a relative or a lawyer and he indicated at the time he understood this. He was then asked, and responded, to the following questions:

"All right. Well, my proposition is a simple one. You say now you would have liked that opportunity. Why didn't you speak up then?‑‑ I understood that I was - that I was allowed that. I - the opportunity to actually - to do that didn't seem to occur. They didn't sort of‑‑‑‑‑

Okay?‑‑   Well, they don't get the phone and place‑‑‑‑‑

HIS HONOUR:  I'm sorry, would you please finish answering the question?‑‑ They - they made me aware of my rights, and - and it seemed like it was a continuation from there. There wasn't - I wasn't sort of - I mean, I am not - you know, I am not experienced as far as when - when is the time you would do - do the thing, you know. I mean, when - no-one was there to sort of say, 'Well, if you are going to make a phone call or if you are going to exercise your rights, now is the time to do it', if that‑‑‑‑‑

MR GODBOLT:  All right. So, they tell you that you have the ability to make a call;  they say that you have a right to make a call, don't they?‑‑ That's correct.

And they asked if you understood that?‑‑ That's correct.

There's no suggestion that the police in their behaviour actively prevented you in any way from making a call?‑‑ Not at all.

They didn't try to keep a phone away from you or anything of that nature?‑‑ No, no, no, not at all.

Is this fair to say;  you were are of - the police made it aware to you why they were there?‑‑ Yes, they did.

And it was made clear to you what they were looking for?‑‑ Yes, they did.

Yes. And I suggest they also made it entirely clear to you that you weren't under an obligation to speak to them?‑‑ That's correct.

All right. And what I suggest is that you understood those rights, and nonetheless you answered questions?‑‑ That's correct."

Against this background, Mr Godbolt submits that the applicant understood the nature of his rights; he understood the warnings; and he was not overborne by the police, so, for example, he was able to get his glasses and he was told he was not obliged to immediately provide his licence as identification; he was not prevented from making a phone call;  the highest he put it is he may have elected to get advice at that point; the police non-compliance with section 34 was a mistake and not intentional or not in reckless disregard of that provision; the mistake does not affect the cogency of the evidence; the evidence of what he said to the police in the interview is important evidence; and the offences with which the applicant is charged are serious offences for which there is a significant community interest in their prosecution.

For these reasons he submits I should not exclude the evidence having regard to the public policy, discretion enunciated in Bunning v. Cross.

Although this case is different from Adamic where the defendant's rights were negated by the police officer making it clear to him that the option of contacting a solicitor was not presently available, the applicant's rights were negated in this case by the failure to explain that he would have a reasonable time to telephone or speak to a friend, relative or lawyer and by not asking him whether there was anyone whom he wished to call.

This occurred in circumstances where I find that the communications to him about his rights were made in the context of events that were moving very quickly. As I have indicated from the introductions which commenced the conversation by the police with him to their asking him about his computer was four minutes.

His right to silence and his right to speak to a friend relative or a lawyer was explained to him in 30 seconds, after which the conversations proceeded onto other matters. In my view the applicant's tone of voice from his first response to the police and throughout this period indicated that he was surprised and as he put it, "fairly shocked".

For some reason Plain Clothes Constable Voysey gives the impression on listening to the tape, as being breathless and possibly nervous. It seems to me that he rushed the matters he was raising with the applicant including his right to silence and his right to communicate with a friend relative or lawyer. Accordingly, I agree with the applicant when he said at page 1-10 of the transcript, "It all sort of happened rather quickly".

I consider more than lip service must be paid by police officers to explaining rights to persons being questioned by them. What was done in this case negated those rights because Plain Clothes Constable Voysey failed to do the basic thing necessary to give the applicant a proper opportunity to determine whether he exercised those rights, including the right to silence. He never had any real opportunity to decide whether he may wish to exercise those rights. This was compounded by the juxtaposition of questions which he was required to answer in circumstances where he was told he was detained and in police custody with questions to which the rights under section 34 and section 37 of the Code related.

The difficulty arose because the police officers were detaining him for the purpose of a search and interviewing him at the same time, with the result that there was an overlap between questions he was required to answer and questions he was not required to answer. A better approach would have been to conduct the search for which he was detained and then to interview him about his possible involvement in the offence alleged discretely. As a result, about 33 seconds after his rights were read to him he was told he was obliged to state his full and correct name and later in the interview he was told, at page 16 of the transcript, again correctly of his obligation to inform the police of any passwords or means of accessing encrypted information.

In addition, immediately after his rights were explained he was asked with reference to both the search warrant and the notice to occupier whether he had a chance to read them. Although he replied in the negative the questioning continued. As Plain Clothes Constable Voysey conceded during his evidence he could not specifically remember seeing the applicant finishing reading the documents. This is confirmed by the passage of his interview which is set out at page 50 of the transcript and to which I have already referred.

This confirms how the interview process was rushed such that the applicant, in my view, did not have a proper opportunity to determine whether to exercise his rights to in particular contact a friend, relative or lawyer, which may have resulted in his receiving advice by virtue of which he may have chosen not to speak further to the police. It cannot be assumed that he would still have spoken to the police if he had been able to properly consider whether to exercise the rights which have been explained to him, including his opportunity to contact the other people, in a meaningful way.

This is particularly so when regard is had to the fact that on 24 May 2008 he refused to be interviewed by Plain Clothes Constable Voysey about the outcome of the examination of the computer. In Adamic Holmes J described the failure of the police to comply with section 34 as cutting corners. That is also an appropriate description of what happened here.

Having regard to the factors in Bunning v. Cross, I accept this is a serious offence and the evidence is cogent. On the other hand, this requirement could easily have been complied with and other cogent evidence is available in the form of Mr Robertson's forensic computer analysis. And I consider there has been a reckless disregard of the requirements under the Code by Plain Clothes Constable Voysey and Detective Gallagher.

Detective Gallagher was the senior officer, and being aware, as he said in evidence, of the requirements of the Code, he should have been vigilant to ensure that the requirements of section 34 were complied with by the more junior officer, Plain Clothes Constable Voysey.

While Plain Clothes Constable Voysey had only a few months of his five years police experience in uniform, he gave evidence of it not being the first time that he had led a search. He, like Detective Gallagher, was familiar with the requirements of the Code. He accepted he should have complied with section 34. He could think of no reason why he did not do so. However, he said with reference to whether it was his usual practise to inform people that there can be a reasonable delay to contact people with respect to the exercise of rights under section 34: "It is something you can ask a person you're executing the search warrant on if you want to."

To say that this is something you ask the person the subject of a search warrant "if you want to", is, in my view, a cavalier attitude to a requirement in circumstances where section 7 of the Act states:

1. “(1)
   It is the Parliament's intention that police officers should comply with this Act in exercising powers and performing responsibilities under it.

1. (2)
   For ensuring compliance with Parliament's intention, a police officer who contravenes this Act may be dealt with as provided by law."

As was said in Bunning v. Cross, an examination of this legislation suggests there was a quite deliberate intent on the part of the legislature to narrowly restrict the police in their power. This is a factor favouring rejection of the evidence.

Also, in Bunning v. Cross reference is made to cases where the incriminating statement has been procured by cause of conduct on the part of law enforcement officers which involved deliberate or reckless breach of a statutory obligation imposed by the legislature to regulate police conduct in the interests of the protection of the individual and the advancement of the due administration of criminal justice.

It is said that such cases manifest "the real evil" at which the discretion to exclude unlawfully obtained evidence is directed. And in such cases, the principal considerations of public policy favouring exclusion are at the strongest and ordinarily dictate the judicial discretion be exercised to exclude the evidence.

In these circumstances, particularly considering this failure, in the context of the other failings in the interview process to which I have made reference, I exercise my discretion to exclude the following portions of the tape recorded interview of 15 May, 2008, between Constable Christopher Voysey and Senior Constable Sean Gallagher with Anthony Bailey at 12 Horatio Street, Annerley, by reference to the transcript:

• Page 5, Line 50 to Page 15, Line 51.

• Page 17, Line 30 to Page 18, Line 20

• Page 28, Line 28 to Page 29, Line 25

• Page 55, Line 41 to Page 56, Line 20

Those are the orders of the Court.

Unless there is anything further, I will adjourn the proceedings. I simply indicated during the course of my judgment in this matter that the statements of Christopher Henry Voysey, Sean David Gallagher and Neil Cameron Robertson are Exhibit 7, 8, and 9 for completeness. Court is adjourned.