The Queen v NAA[2011] QDC 260

DISTRICT COURT OF QUEENSLAND

DISTRICT COURT

CRIMINAL JURISDICTION

JUDGE C.F. WALL QC

Indictment No 205 of 2011

THE QUEEN

v.

NAA

SOUTHPORT

DATE 17/10/2011

..DAY 3

RULING

HIS HONOUR:  NAA is charged with three offences. They are:

(1)That on a date unknown between the 28th day of June 2009 and the 5th day of April 2010 at the Gold Coast, he unlawfully and indecently dealt with NAB, a child under the age of 16, who was under the age of 12 and was his lineal descendant and who he had under his care.

(2)This is a further offence of the same nature.

(3)That between the 28th day of June 2009 and the 5th day of April 2010 at the Gold Coast, he made child exploitation material.

The age of NAB at the relevant time was three years.

The defendant, of his own volution, went to the Broadbeach Police Station, to clear up a complaint which had been made by the mother of the child.

He lived alone at his premises and he suffered from a hearing impediment. He said in evidence that he was born hearing impaired, that he is currently 90 per cent deaf. He relies fully on hearing aids and on lip reading as well. He often gets words confused if they sound the same and he has to think about it for a while before he answers or understands what he is being asked.

Without hearing aids he hears nothing. With hearing aids, he hears sound, but it takes his eyes to decipher what sounds they are.

In a recorded test facing the person speaking, of a 100 words he got 23 words wrong. Turning around, the same sounding 100 words, he got 73 wrong, that’s if he wasn’t facing the speaker.

Plain clothes Senior Constable Lucas McCrae said that during the search of the defendant's premises the defendant seemed to understand what he was saying when he was speaking to him, because he answered all of his questions and he didn’t seem to misunderstand at any stage. Now, that was when they were looking at each other. There was a possibility, though, that when not looking at each other, the defendant may not have heard or understood what was said, and reference was made to the transcript of the search of the premises to a passage where that was apparent.

When the defendant went to the police station he spoke to Senior Constable Vaughan Anderson, who gave evidence this morning. I found Mr Anderson to be a frank and truthful witness, his evidence seemed consistent with the logic of the situation faced by him and the defendant and which developed between the two of them.

At 2.30 p.m., the defendant came to the counter of the Broadbeach Police Station and Mr Anderson spoke to him. Senior Constable Anderson looked on the computer and saw intelligence information about the defendant which related to the possibility that the defendant was using a computer to look at child pornography. Mr Anderson said that the defendant had a hearing impediment and was a little hard to understand. He said he recalls him wearing hearing aids in both ears and that he had to clarify a couple of things with him. He said he was a little bit harder to understand than a normal person.

Senior Constable Anderson told the defendant that there was a report that he had been using a computer to look at child pornography. The defendant said he had a high libido and looked at pornography on the computer, "kiddie stuff comes up from time to time."  He denied downloading anything.

Senior Constable Anderson then arrested the defendant on a charge of possession of child pornography. This was at 2.42 p.m. He cautioned him and escorted him to a waiting area of the police station at the back through the counter. This was, in fact, the constable's day room, referred to by Mr Funch as a muster room. He wasn’t put in the cells because he was compliant and cooperative.

Senior Constable Anderson told him to take a seat and to wait as he was calling the detectives, the Child Protection Investigating officers. Anderson entered a custody report on the computer which indicates to those looking at the computer that he was in the custody of the police. He then contacted the detectives. He explained to the defendant what he had done and what actions he had taken.

He says he believes he would have told the detectives that he had arrested the defendant, he doesn’t recall saying it, though. He conceded the definite possibility that he told the detectives on the phone before they arrived that he had arrested the defendant.

He doesn’t recall saying to the defendant that he was guilty until proven innocent, but conceded the possibility that he did say that.

In relation to informing the detectives, including Senior Constable McCrae that he had arrested the defendant, he said, "It is something that needs to be communicated so other officers are aware of the position, he, the defendant, is in, and it affects that person's rights and a number of other things such as the timeframes they have to - they, the police, have to comply with."

He said he took the defendant to the day room because he had arrested him and he was in "my custody". He took him to that room because he was not free to leave. He was seated in a row of seats usually used to seat persons who had been arrested if they were cooperating with police. Uncooperative arrestees would be taken to the watch-house.

It is clear that the defendant was arrested at the police station. One issue on the present application is whether the detectives, when they spoke to him and when they went to his premises, knew that he had arrested. I am satisfied that they did, but if they didn’t, they had similar powers as a result of their detention of him under section 403 of the Police Powers and Responsibilities Act.

The accused gave evidence and I do not necessarily believe him when he said he didn't understand what was said to or asked of him in relation to the camera, computer and USBs. I do consider that he understood what was said to him when the questioner was facing him but he was at a loss to understand why the police were searching when he'd withdrawn his consent and were then asking questions about what they found. I accept him when he said that in these circumstances he felt he had to answer questions.

When the detectives took or went with the defendant to his premises, what was said was taped and the result is Exhibit A, a transcript of the tape Exhibit 4.

At the police station the defendant had consented to his premises being searched for the computer material. At his premises, his unit, McCrae asked him, "Do you give us consent to come in and search your computer and search your premises for child pornography?"  The defendant said "Yeah".

McCrae said, "There's a few things I need to explain to you before you give us consent. Firstly, you don't have to give us consent, it's totally up to you whether you give us consent to search your premises or not. Okay. The other part is that if any time during the search if you decide that you want to remove the consent then you can say to us "No, I don't consent any longer, I want to remove that consent. Okay. We also need to tell you that if we find anything inside that's of a criminal nature and any evidence, we can seize that evidence and then you may be looking at a criminal prosecution or charges if there's something in there that - in your unit that we've located during the consensual search. Do you understand that?". The defendant said yes. McCrae said, "Are you still happy for us to consensually do - consensually - do you still give us permission to consensually search your unit?". The defendant said "No". McCrae said, "You don't wish to now?". The defendant said "No".

And then there's a passage which is a little hard to follow which is in these terms, the defendant said, "Sell, yeah, I have a [indistinct] a small amount of cannabis, yeah". McCrae then said, "You have a small amount of cannabis; whereabouts is that?  What I'll do now is I'll give you a right to silence" and then he cautioned the defendant.

And then there's this passage at the bottom of page 4. McCrae, "Okay, all right. What we - now, just to clarify, I notice you're wearing two hearing aids.". NAA, "Yeah, sure". McCrae, "I've noticed that when I'm not looking at you, you have a little bit of trouble hearing me". And the defendant agreed. "What sort - did you say you were born deaf?". The defendant said "Born deaf". McCrae said, "If I'm not looking at you directly - at you, can you hear me?" and the defendant's answer is [indistinct]. McCrae said, "Okay, so you are lip reading at the moment; is that right?". NAA said, "Yeah".

McCrae then said, "Okay. So, can you, if I talk slowly and look directly at you, can you understand everything that I am saying?  Okay. What we're going to do now, okay, is I have concerns that if we go away now to get a warrant that you will dispose of the cannabis that's in your unit. Okay. So, what we're doing now is what we call an emergent search so we're gong to enter your premises, okay, and conduct a search for that cannabis because I have concerns that if we go away, you will dispose of that evidence. So, do you understand that?  Okay, so we're going to go inside your unit now. I understand that you have removed consent". The defendant said "mmm?". McCrae said, "But I'm now evoking [sic] another power that we have called emergent search, okay?". The defendant's answer was [indistinct].

McCrae said, "Okay, the entry time is 4.21 p.m. Now, just so you know, under the Police Powers and Responsibilities Act you are also detained as part of the search. Okay. So basically when we're finished we'll tell you when you're not detained any longer. So, that just means basically just stay where we can see you and don't sort of wonder off. Now, I'm the senior officer here for the search today so if you have any questions or you don't understand anything at all, you can direct those questions to me. Okay. Do you understand everything that's happened at the moment?" and the defendant's answer is [indistinct]. There was then a search for the cannabis and related paraphernalia.

Section 403 of the Police Powers and Responsibilities Act provides:  "A police officer may detain a person for a reasonable time to investigate or question the person about any indictable offence the person is suspected of having committed, whether or not the offence for which the person is in custody. However, the person must not be detained under this part for more than eight hours unless the detention period is extended under this division".

The defendant was never, in fact, told that he was no longer detained. After the cannabis was found, McCrae said "So, whereabouts is your computer inside the unit?  Is there any other person in the unit today?". The defendant said, "No.". McCrae, "Who do you live here with?". Defendant, "I don't". McCrae, "Do you live here by yourself?  Yeah". And then there was a search for computer equipment. A computer was located.

The defendant was asked "Do you have any other computers or lap tops or anything like that?", he said, "None at all". He was then asked, "What we might do is, I might just have a quick walk around with you so I suppose what we've got is a call - I'll probably call it a lounge room which has got a computer desk and a computer and in the lounge room there's a camera and camera case, camera battery charging. Come with me and we'll just have a check in the rooms". So they went to other rooms.

The defendant was then asked some questions about the camera. McCrae said, "Does this have any child pornography images on it at all?". The defendant said, "Mmm, yeah, [indistinct], yeah, [indistinct]. And this is when McCrae said, "Sorry, I didn't - I didn't look at you then". The defendant's response was [indistinct]. McCrae said, "Does it have any child‑‑‑‑‑"  Defendant, "No, no, no.". McCrae "pornography images?". Defendant, "No, no". McCrae, "Or", defendant "No.".

Then, McCrae said, "Are you happy for us to have a quick look through that?"  Defendant, "Yeah, yeah, yeah."  McCrae, "camera".

The search then continued and questioning took place about child pornography equipment and matters and the defendant's answers together with the equipment which was located and taken possession of all form the basis of the charges against the defendant.

At page 21, there is this exchange between Mr McCrae and the defendant. "Now, I'll clarify with you - what I'll clarify with you is before when you were talking about you didn’t want to give us consent any longer because you were concerned that you had some cannabis in your kitchen, was that the only reason why you wanted to withdraw your consent?". "Yeah".

So, if you didn’t have any cannabis here at all you would’ve - you would consent to a search?". "Yeah".

But the fact is that he did have cannabis there and he didn’t consent to the search which was conducted.

Then there was this conversation at page 23, "Are you happy to accompany us back to Broadbeach Police Station to talk about the cannabis and the bong and the grinder, would you like to - even Surfers probably, would you like to accompany us back to Surfers Paradise Police Station and talk about the cannabis?". Defendant, "What other choice do I have?". McCrae, "Well, what we do is we ask nicely and we just ask you if you're happy to do that, but if you don’t want to do that, then we'll decide then what we're going to do".

It seems to me that the defendant really didn’t have much say in what was going on at the house and the police were determined to have their way, regardless of what he said to them.

He said this in evidence at page 1-61. "They were there and just doing what they wanted to do". "With your consent, Mr NAA?". "With my just going along with it in the confusion of what was going on". "You knew your rights, you'd been told that you didn’t have to say anything and you understood that". Answer, "Not to the point where I can say, 'go away, leave now'. Because I said no and they entered my house anyway". "You didn’t have any issues of refusing them entry to your house when you declined to let them search it at the start though, did you?". Answer, "I did. I said no". "You were happy enough to stand up for yourself at that stage weren't you?". Answer, "And then when they just pushed through and came in anyway, I just went with the flow of what was going on. I was just, yeah, no, yeah, no, whatever. I told you that. I was not understanding of the situation or the day".

I accept that evidence.

Section 160 of the Police Powers and Responsibilities Act provides in subsection (1):  "This section applies 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 2 offence; and (b), the evidence maybe concealed or destroyed unless the place is immediately entered and searched. (3) A police officer may enter the place and exercise search warrant powers, other than the power to do something that may cause structural damage to a building, at the place as if they were conferred under a search warrant.

Section 161 deals with the necessity for the police as soon as reasonably practicable after exercising powers under section 160 to apply to a Magistrate for a post-search approval order, that is, an order approving the search.

Section 162 deals with the powers of the Magistrate to make a post-search approval order.

The application for the post-search approval order by the police in the present case, is Exhibit 6 and in my view it contains statements which do not accord with what in fact happened at the time.

The application refers to offences of possessing a dangerous drug under the Drugs Misuse Act and possession of child exploitation material under the Criminal Code.

Under the heading "Grounds for the approval" it is that "it will be outlined within this application how police came to locate cannabis and these items is a chance discovery at the defendant's apartment number 1906 of 2669 Gold Coast Highway, Broadbeach on the 4th of April, 2010. The "items" include the drugs, computer, camera and USB drives.

Under the heading "Brackground Prior to Search" the following is written:  "At about 4 p.m. on the 4th of April, the defendant attended the Broadbeach Police Station of his own accord as he was concerned that his ex-wife was not allowing him access to his child and matters relating to child exploitation material. He stated to police that he did not have any child exploitation material and to confirm this, he invited police back to his apartment to show them. Police informed the defendant that he was not under arrest and that they would accompany him to his apartment for the purposes of viewing his computer and other digital storage devices."

No evidence was given by Senior Constable McCrae supporting the statement that the defendant was informed that he was not under arrest. In any event, he had been arrested by Senior Constable Anderson.

The application continues:  "On arrival and prior to entering the unit the defendant was provided his warnings and rights in accordance with the Police Powers and Responsibilities Act. He also acknowledged that he understood police did not have any right to enter his property without his consent and initially provided consent. Police advised the defendant that should they find anything he may be subject to a criminal proceeding. It was at this point the defendant stated that he no longer gave police consent to enter or search his unit. When police asked why he had withdrawn the consent, he stated that he had a quantity of cannabis in his kitchen cupboard. Police then advised the defendant that they had no alternative but to conduct an emergent search of the premises as they were concerned the cannabis would be disposed of by the defendant as he was not in official police custody for any matters at that point."

Well, he was in fact in "official police custody" at that time. He had in fact been arrested, and if there was any doubt about that or any doubt about whether the detectives knew that he had been arrested, they could have detained him under section 403 whilst they applied for a search warrant.

The defendant, as I said, lived alone at the premises. There was no possibility in my view, that he would or could conceal or destroy  the cannabis material unless the premises were immediately entered and searched.

There was, in my view, no basis for an emergent search and the search which was conducted of the premises was an illegal search. There was no basis for for McCrae to reasonably suspect that the cannabis material may have been concealed or destroyed unless the place was immediately entered and searched. The defendant was, in fact, under arrest, alternatively if the detectives didn't know that he had been arrested they could have detained him whilst an application was made for a search warrant.

The application for the post-search approval order continued, after reference was made to the finding of cannabis in the kitchen cupboard and other related items:  "A further search was conducted at the apartment to ensure that there were no other illegal items within the unit."

Well, the emergent search was for cannabis only and as I said, it was not a search which was within the purview of section 160. In those circumstances there was no power for the Magistrate to make a post-search approval order. In my view the police were doing whatever they wanted to at the premises and what they were doing there was being done unlawfully.

They were using the excuse of an emergent search to conduct a search for child exploitation material and equipment, notwithstanding the withdrawal of consent to search his premises by the defendant. In these circumstances the defendant had no real say or choice in relation to what he could or could not do or could or could not say yes or no to. I accept him when he says that he may not have had any real choice in the matter. I think the situation he was in was akin to that referred to on page 23 of Exhibit A which I have already referred to.

I accept his evidence that in the circumstances he faced, an illegal search being conducted without his consent, after he had withdrawn his consent, that he was uncertain or unclear about what his rights were or were not in relation to what, if anything, was found during the search.

I think his evidence that he didn't understand everything that was said to him and his evidence at page 1-18 of the transcript of total confusion and bewilderment is not necessarily inconsistent with the fact that he apparently coherently withdrew his consent for his premises to be searched.

The fact of the matter is that for whatever reason, he did in fact withdraw his consent. The police in those circumstances had no consent from the defendant to search his premises for child exploitation material or related equipment. This relates to the camera, computer and USBs taken from the premises and also to answers to questions about them.

McCrae knew that the defendant lived at the unit by himself, see his evidence at page 2-29. McCrae said that when he arrived at the Broadbeach police station the area in which the defendant was seated was not a public area. He said he did not ask Anderson whether the defendant was under arrest. I find that Anderson told him and that McCrae may just have overlooked that or not recalled it.

I would find it extremely unusual if Senior Constable Anderson who had arrested the defendant didn't tell the detectives exactly that.

In relation to the emergent search, Mr McCrae gave evidence to this effect at page 2-41:  "At the time I believed I was doing an emergent search for cannabis and child exploitation material. When the day before the committal, I listened to the tape and there's evidence I gave to the committal, when I listened to it, I became aware that I had actually said to him that I had concerns that he was going to dispose of drugs. I also had concerns he would dispose of child exploitation material but I had never specified that actually on tape. That's something that I noticed when I played the tape the night before the committal.".

I cannot accept that evidence. It's inconsistent with the application for the post-search approval order which indicated that the basis for the emergent search was to find cannabis.

I don't accept that there was any reasonable suspicion in the circumstances that the defendant would have concealed or destroyed any computers or computer related equipment at his premises. I asked Mr McCrae this question at page 2-42, "Why did you perceive you needed his consent if you were exercising emergent search powers?". He answered, "Just as a back up in case there was some argument later about the search and just out of politeness". Likewise I cannot accept that evidence.

In my view the emergent search was, in fact, only for cannabis and cannabis related matters. Exhibit 6, the application, was created after the event in an attempt to justify what the police did at the time but in endeavouring to do that Mr McCrae didn't go far enough because the application in relation to reasonable suspicion, is confined only to cannabis and does not extend to child exploitation material.

Now, reference was made to a decision of Byrne J. in the case of R v. J W Williamson (2009) QSC 434. The present search both for cannabis and for child exploitation material was not authorised by section 160 and was therefore unlawful, like the searches in Williamson's case.

Mr McGhee correctly accepted that the emergent search was only for cannabis and not also for child exploitation material. That concession was quite properly made. I also accept his submission that Exhibit A by the words used, does provide some support for the fact that the police officers may not have recalled Anderson telling them that the defendant had been arrested. The fact of the matter is though that he had been arrested and in any event the powers the police officers had to detain him would have been sufficient to protect from destruction or concealment any cannabis at the premises.

In my view, the search in relation to child exploitation material was a calculated disregard of the law. The defendant had clearly withdrawn his consent. The emergent search was for cannabis only, not for child exploitation material. This, like Williamson, is not an instance of mere oversight or accidental non-compliance with the law. A deliberate decision was made by the detectives not to seek a search warrant because, I find it, was easier to purport to exercise the emergent search powers.

What is involved now in deciding whether to admit or exclude this evidence is "a balancing process to resolve the apparent conflict between the desirable goal of bringing to conviction the wrongdoer and the undesirable effect of curial approval, or even encouragement, being given to the unlawful conduct of those whose task it is to enforce the law", to use the words of Mason CJ, Deane and Dawson JJ in Ridgeway v. Queen (1995) 184 CLR 19 at 30-31.

I have to take into account a number of factors including "the nature, the seriousness and the effect of the illegal or improper conduct engaged in by the law enforcement officers and whether such conduct is encouraged or tolerated by those in higher authority in the police force", to again use the words of Mason CJ, Deane and Dawson JJ.

The "deliberate disregard of the law by those whose duty it is to enforce it is a highly significant factor, favouring exclusion" of the evidence to adopt what was said by Justice Byrne. So, too "does the consideration that a search warrant could easily have been obtained and in the circumstances where a delay in entering while the warrant was obtained could not have resulted in concealment or destruction" of what was thought to be in the house.

Notwithstanding that the child exploitation material, if it be that, found at the premises and the defendant's answers in relation to it, provides evidence vital to the prosecution case and that the exclusion of the evidence" could very well let a man guilty of serious crimes go free", there is, I think, a necessity on the part of the Courts to make decisions which will not encourage illegal searches and the illegal obtaining of evidence.

In my view the preponderance of the evidence here supports the exclusion of the evidence and that is the order which I make.