DISTRICT COURT OF QUEENSLAND

1. [1]
   The applicant is charged on indictment with:

• 4 counts of indecent treatment of a child under 16, under 12, under care;
• 11 counts of possessing child exploitation material;
• 1 count of deprivation of liberty.

2. [2]
   More particularly:

1. (a)
   Count 1 relates to the taking of two photographs of KS^[1] on 29 July 2000.  It is alleged the photographs involve the complainant being undressed with her wrists tied above her head to a cabinet.  The complainant is the applicant’s step-daughter.  Count 6 relates to the possession of the two photographs and count 16 is the deprivation of liberty charge relevant to this allegation.

2. (b)
   Count 2 relates to the taking of three photographs of KS between 13 November 1999 and 30 June 2001 whereby the complainant was photographed in her pyjamas with her chest exposed.  The complainant herself cannot recall who took these photographs.  Count 8 relates to the possession of these photographs.

3. (c)
   Count 3 relates to the taking of one photograph of KS between 13 November 2001 and 14 November 2003.  It is a photograph of the complainant wearing a pink singlet with her left breast exposed.  She cannot recall who took the photograph.  Count 9 relates to the possession of that photograph.

4. (d)
   Count 4 relates to the taking of one photograph of KS on 17 December 2002 when she was asleep with her left breast exposed.  The complainant cannot recall who took the photograph.  Count 10 relates to the possession of this photograph.

5. (e)
   Count 5 relates to the possession of one compact disc (CD) which contained 1360 images of naked girls in sexualised poses.

6. (f)
   Count 7 relates to the possession of one CD which contained 240 images of girls in sexualised poses.

7. (g)
   Count 11 relates to the possession of one CD which contained 20 images of the complainant naked.  Those images are alleged to have been taken between 31 December 2003 and 10 September 2009.

8. (h)
   Count 12 relates to the possession of an external hard drive which was located on 10 September 2009.  It contained 84 images of naked girls including some cartoon images.

1. (i)
   Count 13 relates to the possession of three floppy discs which contained a total of 8 images of the complainant naked and tied to the wooden cupboard.

10. (j)
    Count 14 relates to the possession of a fictional written story describing the abuse of a 12 year old girl.

(k)Count 15 relates to the possession of a fictional written story describing children being involved in sexual acts.

3. [3]
   The items listed in counts 1 to 11 inclusive and count 13, were found during the execution of a search warrant at the applicant’s home at 130 Rockfield Road, Doolandella on 9 September 2009.  The items mentioned in counts 12, 14 and 15 were located during a second search of that same premises which took place the following day, that is 10 September 2009.

4. [4]
   This is an application pursuant to s 590AA of the Criminal Code for an Order excluding on the trial of the applicant on the above charges the evidence of the images, photographs and writings that were located during those two searches.

Factual background

5. [5]
   On 4 September 2009 a search warrant was obtained by a Constable Parker of the Oxley District Crime Squad from a Justice of the Peace. It permitted the police to execute the search warrant on 130 Rockfield Road, Doolandella with respect to two offences, namely that one KB supplied a dangerous drug to another person on 2 September 2009 and secondly that on 2 September 2009 KB had possession of a dangerous drug. 

6. [6]
   The warrant authorised the seizure of evidence described as “dangerous drugs as well as drug related utensils and paraphernalia used in connection with the distribution and consumption of dangerous drugs including scales, clip seal bags and cutting equipment and proceeds from supplying dangerous drugs.”  Information about the possibility of evidence of illegal drug activity relevant to that address came from a “human source”, a registered drug informant and from police intelligence sources. 

7. [7]
   The person nominated in the application for the warrant and the warrant itself was the step-son of the applicant who, as became apparent as the search proceeded, had not lived at that address for some months. Nevertheless, police had received some information which indicated that the nominated person may still have a connection with that residence.

8. [8]
   The warrant was executed on 9 September 2009 by Constable Parker and other police officers including Plain Clothes Senior Constable (PCSC) Hall. No evidence in relation to drugs was located at the residence. At the beginning of the search process the applicant declared the presence of a number of unlicensed firearms and firearm related objects which were then seized by the police prior to the commencement of the search for unlawful drugs or drug paraphernalia.

9. [9]
   At the start of the search the applicant was informed that the search was to take place and he was provided with a copy of the Notice to Occupier as well a copy of the warrant itself. The applicant informed police at a very early stage that KB had not lived at that address for quite some time.

10. [10]
    The applicant, notwithstanding that he was not named in the search warrant, was nevertheless detained under the provisions of the Police Powers and Responsibilities Act 2000 (PPRA).

11. [11]
    During the course of the search the applicant told police officers that his step-son Brendan, had not lived at the house since February 2009 and that there had been no contact between them since that time. He also told police that there were no drugs or related items at the premises and expressed curiosity as to why the search was being directed at him.

12. [12]
    Despite the information given to the police by the applicant the police nevertheless continued to search the premises.

13. [13]
    After the weapons were seized and secured police asked the applicant about the contents of some filing cabinets and he told them that they housed his comic collection and that he also had about 300 videos. He again repeated that his step-son had left the house many months earlier and had not contacted him since that time.

14. [14]
    It is relevant to note that the search process, which commenced at approximately 3.15pm, was recorded by way of audio tape recording.

15. [15]
    During the search PCSC Hall, after being told by the applicant that there would be nothing in the drawers of a dressing table in the applicant’s bedroom that the police would be interested in, located several photo albums containing photographs of the applicant’s ex girlfriends, some of whom were depicted in sexualised poses. No charges however arose from those photographs.

16. [16]
    Upon continuing the search PCSC Hall located a plastic photo frame under the applicant’s bed. That frame contained a picture depicting a demon and a female and concealed behind that image and inside the photo frame were located a number of polaroid photographs and negative strips.

17. [17]
    These photographs depicted the following:

1. (a)
   Photographs numbered 1 and 2 showed a pre pubescent naked female standing with her hands bound above her head.  The female is standing in front of a large wooden cupboard.  Each photograph was taken on a Polaroid camera and had the words “Sheree 8 29 7 2000” hand written upon them.

2. (b)
   Photograph number 3 showed the same pre pubescent naked female asleep with her left breast exposed.  This photograph was taken on a Polaroid camera and had hand writing on it which said “17 12 2002  11”.

3. (c)
   Photographs 4, 5 and 6 showed the same pre pubescent female lying on a couch posing for the photographs.  The female is wearing an open vest with her breast area exposed. 

4. (d)
   Photograph number 7 showed the same pre pubescent female lying down wearing a pink singlet, with the left breast exposed as the focus of the photograph.

5. (e)
   Photograph number 8 showed the same pre pubescent female running on a grassed area, only wearing underpants.  There is also a young male child with his buttocks exposed in this photograph together with another young male child wearing underpants.  The pre pubescent female has her breast area exposed in the photograph.  On the rear of the photograph appears the hand written words “Jan 1998 (6)”.

18. [18]
    The applicant identified the pre pubescent female as being his step-daughter, KS.

19. [19]
    Police claim that an emergent search was then commenced at that address in relation to child exploitation material suspected of being present at the address. During the remainder of that search the items mentioned in the other charges (with the exception of counts 12, 14 and 15) were located.

20. [20]
    The search was concluded at approximately 6.10pm at which time the residence was locked and secured. The applicant voluntarily accompanied police to the Acacia Ridge Police Station. At approximately 9.21pm an electronically recorded interview with the applicant took place at which time the applicant agreed to participate in an interview but only in relation to the firearms that were located.

21. [21]
    Later that evening the applicant was arrested for possessing child exploitation material and was detained in custody overnight.

22. [22]
    At approximately 7.30am the following day PCSC Hall swore out a further search warrant application in relation to 130 Rockfield Road, Doolandella. 

23. [23]
    At approximately 8.30am he attended that address with two other police officers and executed that search warrant. That search was captured on video recorder and it was during that search that the items the subject of counts 12, 14 and 15 were located.

24. [24]
    On the morning of Friday 11 September 2009 PCSC Hall swore out an Application For A Post-Search Approval Order before the magistrate at the Richlands Magistrates Court. The magistrate signed the order at 1.20pm that day.

Applicant’s submissions

25. [25]
    It is submitted on behalf of the applicant that the evidence seized on 9 September 2009 should be excluded in the exercise of the public policy discretion and/or the unfairness discretion.

26. [26]
    The reasons in support of that application are said to be the following:

1. (a)
   There was a gross invasion of the applicant’s rights;

2. (b)
   Distinct protests were raised by the applicant which were completely ignored by the police;

3. (c)
   The police failed to make any enquiries concerning KB;

4. (d)
   The seizure was not authorised under the warrant;

5. (e)
   The offences fall at the low end of the range for this type of offending with most of the images falling within category 1, there being no actual indecent treatment of a child alleged and the complainant being unable to recall most of the photos having being taken in the first place;

6. (f)
   The courts should not turn a blind eye to deliberate breaches of the law;

7. (g)
   It is the parliament’s intention that the police comply with the PPRA.

27. [27]
    In support of these contentions the applicant has submitted the following:

1. (a)
   Contrary to s 151 of the PPRA the police and/or the magistrate could not have been satisfied there were reasonable grounds for suspecting drugs were at 130 Rockfield Road, Doolandella;

2. (b)
   The police breached s 19(3) PPRA by staying at the house for more than a reasonable time;

3. (c)
   Contrary to s 157(1)(e) PPRA the applicant was detained for more than a reasonable time;

4. (d)
   Contrary to s 154 PPRA there was no authority with respect to the computer (which was seized together with the photographs on 9 September 2009);

5. (e)
   Contrary to s 160 PPRA there were no grounds for an emergent search;

6. (f)
   Contrary to s 162 PPRA there was an invalid Post-Search Approval Order;

7. (g)
   The defendant’s actions were prescribed and controlled by the police unlawfully for the entire duration of police presence;

8. (h)
   The police searched beyond the scope of the search warrant;

1. (i)
   The police gave directions beyond their powers of detention;

10. (j)
    The applicant was not advised or given notice of the change in nature of the search by police;

11. (k)
    The applicant was not given a caution upon their determination by the police to commence an investigation of an indictable offence targeted towards the applicant;

12. (l)
    The defendant was not given the opportunity to consider the scope of the new, apparently unlimited powers of search the police had conferred upon themselves;

13. (m)
    The applicant was not given the opportunity to consider his position in respect of the changed search nor was he given the opportunity to contact his legal advisors;

14. (n)
    The applicant was unlawfully directed to provide access credentials to his computer;

15. (o)
    The police encouraged the applicant to act cooperatively and in the context of his early detention regardless of their changed investigation.

28. [28]
    It is further submitted that the information upon which the issue of the search warrant of 10 September 2009 was based, was obtained pursuant to an illegal search conducted the previous day. It is submitted therefore, that the evidence obtained on 10 September 2009 is derivative evidence arising from unlawful conduct on the part of the police and should be excluded.

Submissions on behalf of the respondent

29. [29]
    The respondent has submitted that the warrant executed on 9 September 2009 was perfectly valid for the purpose for which it was obtained, namely the search for evidence in relation to dangerous drugs.

30. [30]
    It is further submitted that the warrant obtained and executed by PCSC Hall on 10 September 2009 was also valid for the search of further child abuse material and the seizure of such evidence in that regard.

31. [31]
    The respondent thus submits that the seizure of evidence on both 9 and 10 September 2009 occurred lawfully consistent with the terms of valid search warrants and/or a valid Post-Search Approval Order. In the alternative, the respondent has submitted that the court has a discretion to admit invalidly obtained evidence and that in this case the police officers acted in good faith and without reckless disregard to the law and that if there were any irregularities associated with their actions, then the discretion to admit the evidence obtained under the Bunning v Cross principle should be exercised.^[2]

Consideration of the issues

Lawfulness of Search Warrant dated 9 September 2009

32. [32]
    It is not in contest that any items seized relevant to this matter on 9 September 2009 were seized not under the authority of the warrant that had issued at that time but rather under the authority provided by the Post-Search Approval Order issued two days later in the Magistrates Court. 

33. [33]
    The applicant has submitted that the search warrant did not permit the police to search for anything other than that which was specified in the warrant. I agree with that submission.^[3]  I also agree that the search constituted an invasion of the applicant’s rights.  Those rights however, as is the case with all citizens, are subservient to the law.  A validly and lawfully executed search warrant authorises the police to conduct a search of a specified type at a specified place within a specified time period and overcomes any consideration of the “individual’s rights” by virtue of the lawfulness of the warrant itself.

34. [34]
    In that regard, there was criticism in this case that Constable Parker had insufficient information or evidence to support a reasonable suspicion that evidence of the commission of an offence was at the address in question. In that regard Constable Parker said in the application for the search warrant:

“On the second day of September 2009, police received drug activity information from a human source.  This information suggested that a male person was supplying dangerous drugs to persons.  The informant suggested that this male lives at 130 Rockfield Road, Doolandella and drives a Honda Integra.  The human source informed police that there is a large quantity of cash in the dwelling which are proceeds from selling drugs. 

Police received information from another independent source indicating that persons are purchasing drugs from 130 Rockfield Road, Doolandella and utilising an alley way situated near the address to inject.

Verification Checks:

1 Checks through police computer system indicate that 130 Rockfield Road, Doolandella is occupied by KB and Steven Patrick Pederson (04/08/1957), it is believed that KB may be the son or step-son of Pederson.

2 Checks via police computer system show a KB DOB: 17/7/1989 as having previous history for drug possession, possess utensil, possess property suspected of being stolen and robbery with violence. 

3 Checks through the Queensland Transport database showed KB was the registered owner of grey Honda Integra with registration number 148JVG.  This vehicle is now registered to his sister, KS and it is believed that KB still has access to this vehicle as the vehicle is registered to 130 Rockfield Road, Doolandella.

4 Checks conducted confirmed that 130 Rockfield Road, Doolandella is a single storey brick dwelling, white in colour with a mesh fence along the front of the property.  There is vacant land behind the property and an alley way adjacent to the dwelling which extends onto Wallaby Court. 

The human source in this matter is known to police and has provided reliable information in the past.   Police reasonably suspect that a search of 130 Rockfield Road, Doolandella will afford evidence of the commission of an offence as defined in the Drugs Misuse Act 1986.”

35. [35]
    It has been submitted on behalf of the applicant however that police computer records at the time of this search recorded KB as being resident at 6 Murray Place, Forest Lake not 130 Rockfield Road, Doolandella. These records in fact showed that on 5 February 2009 KB was charged and convicted of drug offences arising from a raid that took place at 6 Murray Place, Forest Lake.  It was further submitted on behalf of the applicant that searches of KB’s fine records would disclose that he did not live at 130 Rockfield Road, Doolandella.  It is said therefore that it was not reasonable to believe that KB would be at 130 Rockfield Road, Doolandella or that there would be evidence of an offence at that location. 

36. [36]
    I cannot agree with that submission. Constable Parker said in evidence before this court that police records revealed that KB had lived at 130 Rockfield Road, Doolandella a number of times in the past.  Furthermore, police were aware that the bumper bar of a motor vehicle which had previously been registered in his name but was at the time of the search registered in his sister’s name at that address^[4]  had been seen by police in the yard of the Doolandella address shortly prior to the execution of the search warrant on 9 September. 

37. [37]
    Section 150(5) PPRA provides that an application for a search warrant must state the grounds on which the warrant is sought. Section 151 provides that the issuer of a search warrant may only issue that warrant if satisfied that there are reasonable grounds for suspecting that evidence of the commission of an offence is at the place the subject of the warrant or is likely to be taken to the place within the next 72 hours.

38. [38]
    Given the information that Constable Parker had at the time he made the search warrant application, I accept that the issuer of that warrant was satisfied that there were such reasonable grounds.

Execution of Search Warrant dated 9/9/09

39. [39]
    The applicant has also been critical of the police for remaining at the place for longer than was necessary pursuant to the terms of the warrant and/or detaining him for longer than was lawfully authorised pursuant to the terms of the warrant.

40. [40]
    If, in fact, no emergent search was conducted on that day then I would agree with that submission. The issue of whether or not an emergent search was conducted, and if conducted, was done so lawfully, really goes to the heart of the dispute in this matter. Both police officers gave evidence that they conducted an emergent search after the discovery of the photographs hidden in the picture frame under the bed in the applicant’s bedroom. The applicant gave evidence that no-one spoke to him about the changing nature of the search and that as far as he was aware the search throughout related to the search for prohibited drugs. It follows that if an emergent search was not in fact conducted that day then it is reasonable to infer that the police have subsequently appreciated the unlawfulness of the search which they did in fact conduct and have consequently attempted to overcome that problem by obtaining a Post-Search Approval Order. Obtaining such an order however does not in and of itself make the search lawful. If the police had not in fact decided to conduct an emergent search during the course of that afternoon, but had merely embarked upon a search that extended well beyond that which was authorised by the search warrant, then the subsequent obtaining of a Post-Search Approval Order would not validate the search. Police must comply with the statutory pre-requisites for an emergent search to be conducted lawfully.

41. [41]
    According to PCSC Hall, the search which was conducted pursuant to the warrant ended after the finding of the photographs under the bed. It was soon after that, according to his evidence, that the emergent search was commenced.

42. [42]
    Up until that point in time, I am of the view that there was nothing remarkable or unlawful about the conduct of the police. Whether KB was or was not residing at that address at that time was not the matter in issue. The applicant’s statements to the police on that topic during the course of the search were apparently truthful, but that did not mean that a search pursuant to the authority of the warrant should not have continued. It would be a foolhardy police officer who decides to not conduct a proper search simply because the occupant of the house gave information which, if correct, would mean that the search would be fruitless.

43. [43]
    In that regard I accept that the police were conducting the search appropriately and within the parameters set by the search warrant up until the time of the discovery of the photographs under the bed.

Emergent Search

44. [44]
    The legislation relevant to the conduct of emergent searches is found in ss 159 to 162 inclusive PPRA.

45. [45]
    Relevantly s 160 PPRA says:

“Search to prevent loss of evidence

160

3. (1)
   This section applies if a police officer reasonably suspects –

1. (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

2. (b)
    the evidence may be concealed or destroyed unless the place is immediately entered and searched.

3. (2)
    This section also applies if a police officer reasonably suspects a Part 2 offence has been, is being, or may be committed in, on or in relation to a transport vehicle and involves the safety of the vehicle or anyone who may be in or on it.

3. (3)
    A police officer may enter the place and exercise search warrant powers, other than 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 says:

“Post-search approval

161

3. (1)
    As soon as reasonably practicable after exercising powers under section 160, the police officer must apply to a magistrate in writing for an order approving the search (post-search approval order).

3. (2)
    The application must be sworn and state the grounds on which it is sought.

3. (3)
    The applicant need not appear at the consideration of the application, unless the magistrate otherwise requires.

3. (4)
    The magistrate may refuse to consider the application until the police officer gives the magistrate all the information the magistrate requires about the application in the way the magistrate requires.

Example –

The magistrate may require additional information supporting the application to be given by statutory declaration.”

Section 162 says:

“Making of post-search approved order

162

3. (1)
    The magistrate may make a post-search approval order only if satisfied –

1. (a)
    in the circumstances existing before the search –

1. (i)
    the police officer, before exercising the powers, had a reasonable suspicion for exercising the powers; and

2. (ii)
    there was a reasonable likelihood that the evidence would be concealed or destroyed or may have caused injury to a person; or

2. (b)
    having regard to the nature of the evidence found during the search it is in the public interest to make the order.

3. (2)
    The magistrate may also make an order under section 693 or 694, whether or not a post-search approval order is made.”

46. [46]
    Constable Parker gave evidence before this court that he believed that PCSC Hall declared an emergent search in relation to child exploitation material sometime shortly after the photographs hidden in the photo frame were located. Constable Parker conceded that he did not hear PCSC Hall declare an emergent search but he was of the opinion that PCSC Hall explained the emergent search provisions to the applicant in the lounge room of that address.

47. [47]
    When asked if any thought was given to ceasing the search and obtaining a new search warrant before continuing, Constable Parker said:

“The thought at the time – the conversation was that the current search was to end and we would do an emergent search in relation to located material in case it was compromised or disposed of before we returned with a search warrant.”^[5]

48. [48]
    Constable Parker agreed that throughout the course of the search he had the recording equipment on his person.^[6]  He also acknowledged that there was no recorded conversation of PCSC Hall advising the applicant that an emergent search (or words to that effect) was about to take place.

49. [49]
    Similarly, PCSC Hall gave evidence before this court that after finding the photographs under the bed he spoke to the Senior Officer present at the search (Senior Constable (SC) Larry Watson-Paul) about the items that had just been located. He said that a short time thereafter an emergent search was conducted in relation to child exploitation material. PCSC Hall said that after speaking to SC Watson-Paul he advised the applicant in the area outside the main bedroom that an emergent search was about to be conducted.

50. [50]
    The applicant gave evidence that no such conversation between he and PCSC Hall took place.^[7]

51. [51]
    When asked if he gave any consideration to halting the search after finding the photographs under the bed and obtaining a new search warrant, PCSC Hall said:

“I didn’t really consider it because I thought it was too much of a risk to leave the – that address and risk losing evidence so hence we conducted an emergent search.”^[8]

Later when asked why couldn’t the police stay outside the house while he went to the Richlands Magistrates Court to get a warrant, he said:

“Well, I believe that, as I said, the emergent search was conducted.  There are provisions for that and I believe that those existed.”^[9]

52. [52]
    I note that s 160 PPRA does not require the police to make a declaration that they are about to conduct a search pursuant to the authority which that section provides.

53. [53]
    As is apparent from the above quoted passages, neither police officer gave any reason for their stated concern that evidence may be concealed or destroyed unless an immediate search took place. This absence of grounds for the alleged suspicion is significant. It seems that the prosecution case is that it would be human nature, in such circumstances, to destroy or remove material unless it is then and there seized. The legislation however, requires something more tangible than that.

54. [54]
    For that reason, I am not satisfied that PCSC Hall had a suspicion based on reasonable grounds that evidence may be destroyed unless an immediate search and seizure took place. The mere fact that the applicant was present at the time the photographs were found under the bed, does not, of itself, provide a reasonable basis for a suspicion that he may then conceal or destroy other evidence. This is particularly so in this case given that the applicant is a person with no prior convictions and no history of anti-social behaviour.

55. [55]
    Furthermore, the fact that no recording exists of the alleged conversation between PCSC Hall and the applicant wherein the applicant has advised that an emergent search was about to take place is relevant. I would have expected any such conversation (and I note that there is no legislative requirement for police to give such notice) to have been recorded, given that a tape recorder was utilized throughout the search. The absence of such a recording, together with the disputed evidence on the issue, has the result that I am not satisfied that any such conversation took place.

56. [56]
    Accordingly, I find that the continued search for child exploitation material was unlawful. Furthermore, I do not accept that the magistrate who issued the Post-Search Approval Order had sufficient evidence before him to be satisfied that PCSC Hall had a reasonable suspicion for exercising the powers conferred under s 160 PPRA or that there was a reasonable likelihood that evidence would be concealed or destroyed. The only information put before the magistrate on that point was contained in a passage in the application for the Post-Search Approval Order:

“Police believe that it was not practicable to obtain a new search warrant for 130 Rockfield Road, Doolandella at this time as evidence could have potentially been lost.  It had not been confirmed at this time if any other person had access to this dwelling that could have potentially removed or hidden other items of evidence, police had departed this address to apply for another search warrant.”^[10]

57. [57]
    Such a comment seems to be nothing more than speculation unsupported by evidence and cannot provide a basis for a reasonable suspicion.

Post-Search Approval Order

58. [58]
    The applicant has also submitted that the Post-Search Approval Order is deficient in two respects and is therefore an invalid order.

59. [59]
    The order signed by the magistrate is a pro-forma, which allows for parts to be deleted as considered appropriate. An error was made in the completion of the document as there was a failure to delete certain portions.

60. [60]
    Given the conclusion that I have reached however in relation to the unlawfulness of the search itself, I do not need to examine further the potential consequence of this error.

Exercise of discretion

61. [61]
    As I have already mentioned, the respondent has submitted that even if a finding of unlawfulness is made in relation to the search, this is an appropriate case for the court to exercise its discretion to admit invalidly obtained evidence under the Bunning v Cross principle.

62. [62]
    In George v Rockett^[11] the High Court when examining the validity of a search warrant noted at [4]:

“A search warrant thus authorises an invasion of premises without the consent of persons in lawful possession or occupation thereof.  The validity of such a warrant is necessarily dependent upon the fulfilment of the conditions governing its issue.  In prescribing conditions governing the issue of search warrants, the legislature has sought to balance the need for an effective criminal justice system against the need to protect the individual from arbitrary invasions of his privacy and property. …

(5) State and Commonwealth statutes have made exceptions to the common law position … Nevertheless, in construing and applying such statutes, it needs to be kept in mind that they authorised the invasion of interest which the common law has always valued highly and which, through the writ of trespass, it went to great lengths to protect.  Against that background, the enactment of conditions which must be fulfilled before a search warrant can lawfully be issued and executed is to be seen as a reflection of the legislature’s concern to give a measure of protection to these interests.  To insist on strict compliance with the statutory conditions governing the issue of search warrants, is simply to give effect to the purpose of the legislation.”

63. [63]
    In Crowley v Murphy,^[12] Lockhart J held at 152 that the fundamental obligation of a person entrusted with the execution of a warrant was to “… adhere strictly to the terms of the warrant and … seize only those documents … authorised to seize.”  Further, at 155:

“… the overriding obligation of the searcher is to do no more than is reasonably necessary to satisfy himself by search that in all the circumstances of a particular case he has whatever documents are necessary to answer the terms of the warrant.  Plainly this must vary from case to case.  What is permissible on one occasion is impermissible on another.  Much must be left to the sense of responsibility of the police officer and the person whose premises are to be searched.”

64. [64]
    In Pressler v Holzberger^[13] Spender J said:

“To permit police officers and others whose duty is to vindicate the law to be able to retain documents seized in contravention of the law is seriously to undermine the protection the Crimes Act gives.  To condone unlawful conduct may subtly or not too subtly encourage it. …The observation [in Ireland] that it may be that acts in breach of a statute would more readily warrant the rejection of the evidence as a matter of discretion in my respectful view, go some part of the way towards establishing a doctrine of due process in Australia.  Whether legislature has defined the circumstances in which a person’s liberties might be infringed or their rights curtailed, it should not readily be concluded that conduct outside the defined authorisation is to be tolerated or excused.  Judges ought not, by a wink or a nod, weaken the protection which the law gives to the rights and liberties of the citizen.”

65. [65]
    In R v Ireland^[14] it was said:

“Evidence of relevant facts or things ascertained or procured by means of unlawful or unfair acts is not, for that reason alone, inadmissible.  This is so, in my opinion, whether the unlawfulness derives from the common law or from statute.  But it may be that acts in breach of a statute would more readily warrant the rejection of the evidence as a matter of discretion: or the statute may on its proper construction itself impliedly forbid the use of facts or things obtained or procured in breach of its terms.  On the other hand evidence of facts or things so ascertained or procured is not necessarily to be admitted, ignoring the unlawful or unfair quality of the acts by which the facts sought to be evidenced were ascertained or procured.  Whenever such unlawfulness or unfairness appears, the judge has a discretion to reject the evidence.  He must consider its exercise.  In the exercise of it, the competing public requirements must be considered and weighed against each other.  On the one hand there is the public need to bring to conviction those who commit criminal offences.  On the other hand there is the public interest in the protection of the individual from unlawful and unfair treatment.  Convictions obtained by the aid of unlawful or unfair acts may be obtained at too high a price.  Hence the judicial discretion.”

66. [66]
    This issue was more recently considered in this court by Shanahan DCJ^[15] where his Honour said:

“The authorities requiring strict compliance with the conditions of search warrants are clear.  A search warrant permits the State to intrude on the private rights of citizens.  It permits entry of private property, the search of private property including extensive materials stored electronically against any right to privacy and the seizure of property and records if certain conditions are fulfilled.  If those conditions are not scrupulously followed then the weight of that non-compliance weights heavily in the exercise of the Bunning v Cross discretion.”

67. [67]
    Taking all relevant matters into account I am of the opinion that the prosecution should not be permitted to rely upon the evidence obtained during the course of the search that took place on the afternoon of the 9^th September 2009 after the discovery of the photographs under the bed.

68. [68]
    For reasons that I have already given however I would in the exercise of my discretion allow the evidence of the discovery of the photographs under the bed to be placed before the jury. That evidence was located during the lawful search that was being conducted pursuant to the search warrant and no legitimate criticism can be made of the police for seizing that material at that time.

Search conducted on 10 September 2009

69. [69]
    Counsel before me agreed that the determination of the lawfulness of the search on 9 September 2009 would almost inevitably determine the lawfulness of the search conducted the following day. Ordinarily I would agree with that submission. Given the findings that I have made above however separate consideration needs to be given to this issue.

70. [70]
    The Application For Search Warrant completed by PCSC Hall detailed all of the relevant material found during the course of the search that took place the previous afternoon. It also advised that the previous day’s search ended due to failing light. Whilst it contained reference to material which I have found was unlawfully obtained it also referred to material which I have found was lawfully obtained i.e. the photographs found under the bed. Given that I have found that the discovery of those photographs would have provided more than enough foundation for the issuing of a further search warrant it is difficult now to conclude that the warrant issued the following day was unlawful or unfair simply because the application for it referred to other material. Had there been no reference to any material other than the photographs found under the bed I have no doubt that the Justice of the Peace would have still issued the warrant. Equally, I have no doubt that the finding of those photographs provides a reasonable basis for a police officer to hold the suspicion that there may be evidence of further offences at that premises.

71. [71]
    For these reasons, I am of the view that the search warrant issued on 10 September 2009 was lawful and authorised the search which took place later that morning. If I am incorrect in that regard I would have nevertheless admitted the evidence of the material located during the search that morning in the exercise of my discretion.

72. [72]
    Orders

1. The prosecution is permitted to lead evidence of the photographs found under the applicant’s bed.

2. The prosecution is not permitted to lead evidence of any other evidence located during the search which took place on 9 September 2009.

3. The prosecution is permitted to lead evidence of the search conducted on 10September 2009.