The Queen v Lloyd[2014] QDC 181

DISTRICT COURT OF QUEENSLAND

1. [1]
   On 02 June 2014, I ordered that certain evidence in the prosecution case be excluded. I reserved these reasons.

2. [2]
   The evidence was the only evidence against the accused. On 03 June 2014, the prosecution entered a nolle prosequi on the indictment and the accused was discharged upon it.

The Charge

3. [3]
   The applicant (the “accused”) was charged with possessing child exploitation material (section 228D Criminal Code (Qld): “the Code”). The relevant evidence was obtained by examination of a laptop computer (“computer”) that came into the possession of the police. The computer contained child exploitation material. The application to exclude the evidence was made on behalf of the accused, on grounds of inadmissibility as evidence unlawfully obtained. I was asked to exclude the evidence on an exercise of discretion. 

Evidence on Voir Dire

4. [4]
   On the hearing of the application, evidence was adduced from Detective Senior Sergeant Miles (“Miles”), the Officer in Charge of the Child Protection Unit in Townsville. In Evidence-in-Chief he said that two other police officers were investigating another offence implicating the accused (his allegedly having contact with a child whilst he was a reportable offender) and sought advice from Miles. They informed Miles that the child and her mother had attended the police station front counter and that the mother had handed a computer to them and informed them that the child had said that she had seen “porn” on the computer. Miles told the other officers that a section 210 (Code) offence may have been committed and they were to seize the computer (but see at [12], [16] and [17] infra, the qualification about this in the respondent’s submissions: that as a matter of fact the computer was ‘seized’- if that expression is literally correct - by Miles when he received it in his office from the other officers) and immediately conduct a section 93A [Evidence Act 1977] interview with the child; and that he would:

“… conduct an examination of the computer to identify what media material was on the computer and then, hopefully, by the end of the 93A, we could compare what I had found to what they knew from the interview and ascertain whether there was an offence under section 210”.

5. [5]
   In cross-examination, Miles said that at that point in time:

• He had possession of the computer;
• He did not know if the child had or had not seen any material, other than that the mother had told the other officers that the child had seen “porn” on the computer;
• He did not know if the child had been shown any material by the accused;
• He did not know what the nature of the “porn” was;
• He believed he had a reasonable suspicion at that time, of the commission of an offence against section 210 of the Code, “… that the child had seen pornography on the computer”;
• The accused was in custody at that time and had been so for some four days;
• The computer was seized pursuant to section 195 of the Police Powers and Responsibilities Act 2000 (“the PPRA”);
• He believed that the accused was the owner of the computer;
• He did not have permission from the accused to open the computer.

Other relevant evidence

6. [6]
   Miles was aware at the time, that the accused was a convicted child sex offender and a reportable offender under the Child Protection (Offender Reporting) Act 2004.

7. [7]
   When she attended at the police station, the child’s mother said that:

“Ray [the accused] kept his laptop in the office … his laptop is a Toshiba, has a password on it which I don’t know what it is. The only time we would use it Ray would have to log on each and every time. I don’t know of anyone that knows his password.”

8. [8]
   The child is said to have told her mother that she had accessed the laptop and a folder titled “Porn” and that she thought that the participants in the pornography were adults.

9. [9]
   There is no evidence that the mother had been in lawful possession of the computer or that she was authorised to permit a search of the computer. There is no evidence that the accused consented to or was aware of the search of the computer by Miles. There is no evidence that Miles was exercising a power under a search warrant or that any police officer had sought a post-search approval pursuant to the PPRA. 

Was the evidence unlawfully obtained?

Discussion

10. [10]
    It was common ground in the hearing that Chapter 7 Parts 1 and 2 of PPRA did not apply because the police did not enter a place and then search that place as provided in those parts. Any reliance by the respondent in support of it’s submissions, referrable to R v Turner [2012] QDC (Durward SC DCJ - unpublished), a decision delivered by me that canvassed the authorities in search warrant cases and wherein I refused an application to exclude evidence unlawfully obtained, in an exercise of discretion, does not assist the prosecution in resisting this application. The facts and circumstances and the legal issues in that case were quite different.

 (i) Power to seize evidence generally

11. [11]
    Ms Heywood relied on section 196 of the PPR Act as providing power for Miles to seize the computer: 

“196 Power to seize evidence generally

1. (1)
   This section applies if a police officer lawfully enters a place, or is at a public place and finds at the place a thing the officer reasonably suspects is evidence of the commission of an offence.

1. (2)
   The police officer may seize the thing, whether or not as evidence under a warrant and, that the police officer is acting under a warrant, whether or not the offence is one in relation to which the warrant was issued.

1. (3)
   Also, the police officer may photograph the thing seized or the place from which the thing was seized.

1. (4)
   The police officer may stay on the place and re-enter it for the time reasonably necessary to remove the thing from the place.”

(my emphasis).

 (ii) Is a police station a public place?

12. [12]
    Ms Heywood submitted that the front counter of the police station was a “public place”. She agreed that Miles had been elsewhere within the police station and that it was he who had ‘seized’ the computer, as a matter of fact. It was the other officers who received the computer from the mother at the counter and Miles had taken it from their possession “somewhere in the depths of the police station” (my expression, in a question posed to Ms Heywood) and decided to keep it and open it. Ms Heywood conceded that it was the conduct of Miles that was critical in the determination of the application.

13. [13]
    “Public place” is defined in Schedule 6 to the PPRA as meaning:

3. “(a)
   a place to which members of the public have access as of right, whether or not on payment of a fee and whether or not access to the place may be restricted at particular times or for particular purposes; or

2. (b)
   a place declared under another Act to be a public place for any law conferring powers or imposing functions on police officers; or

2. (c)
   a part of a place that the occupier of the place allows members of the public to enter, but only while the place is ordinarily open to members of the public; or

2. (d)
   a place that is a public place under another Act.”

14. [14]
    In Bethune v Heffernan; Heelan v Heyward [1986] VR 417 Nathan J, at pp418-419, considered “the novel question” whether a trespass provision in the Summary offences Act 1996 (Victoria) applied to a police station. The issue was not the defining issue in the case, but his Honour made the following observations:

“I am quite satisfied that the foyer of an open police station is a public place.”

and

“Certainly the public reception area of a police station when open for business falls within this class. Public policy dictates that citizens should not be impeded or hindered in their access to the police. Both respondents were perfectly entitled to enter the reception area to accompany or wait for their friends who had been arrested: that entitlement would not have extended to the non-public areas of the station such as the offices, muster rooms or corridors.”

15. [15]
    Mr Walters referred to E (a child) v Staals (1994) 13 WAR 1. However, in that case the legislative provision being considered distinguished a ‘public place’ from a ‘police station’ and suggested, perhaps implied, that for the purpose of that legislation a ‘police station was not a ‘public place’.

16. [16]
    The purpose implicit in the power provided to police section 196 of the PPRA is directed to places other than the foyer of a police station in my view. That seems to me to be a reasonable construction of the section. One would not expect the police to be invoking the power afforded to them under this section in a police station. In any event, the respondent conceded that the ‘seizure’ occurred in an office or other place within the police station and beyond the reception or front counter area.

17. [17]
    I have raised the issue of whether there was a ‘seizing’ of the computer or not. The word “seize” is relevantly defined in The Macquarie Dictionary 2^nd Revised edition as meaning “to take possession of by legal authority” or to “confiscate”. That is not what happened here. The mother simply gave it to the police officers.

18. [18]
    I find that a police station is not a public place for the purposes of the Act. I also do not accept that Miles had “technically entered a place (that is, the police station) lawfully” so as to enliven section 196 PPRA. Further, I find that the computer was not “seized” but simply had been given over to the police voluntarily by the mother who had no authority of the owner so to do. Keeping it arguably may not have been unlawful but the act of opening it and examining the contents was, in the circumstances described above, unlawful.

 (iii) The meaning of ‘reasonably suspects’ in the PPRA

19. [19]
    Did Miles have any proper or lawful basis for a “suspicion on grounds that are reasonable in the circumstances” at the time he seized the computer and opened it?

20. [20]
    In R v Bossley [2012] QSC 292, Dalton J wrote:

“The term ‘reasonably suspects’ is defined in Schedule 6 to the PPRA as meaning, ‘suspects on grounds that are reasonable in the circumstances’.  There is also well-established common law authority in relation to both the concept of suspicion and the concept of reasonable suspicion. The meaning of suspicion in this context is discussed by the High Court in George v Rockett. A suspicion and a belief are different states of mind. A suspicion is a state of conjecture or surmise. It is more than idle wondering. It is a positive feeling of apprehension or mistrust, but it is a slight opinion within sufficient evidence. Facts which reasonably ground a suspicion may be quite insufficient to reasonably ground a belief. Nonetheless, to have a reasonable suspicion some factual basis for the suspicion must exist. There must be sufficient factual grounds reasonably to induce the suspicion. The facts must be sufficient to induce the suspicion in the mind of a reasonable person. The suspicion must be reasonable, as opposed to arbitrary, irrational or prejudiced. If a young man is driving a smart car with some panel damage it is not sufficient to give rise to a reasonable suspicion.”

21. [21]
    Miles could and should have first interviewed the child (or waited for the interview conducted with the child to be completed by the other police officers) so that he could have a basis for forming a “reasonable suspicion” that the accused had shown “porn” to the child. The information he had at the time was that the mother had said to the other officers that the child may have accessed “porn” (not even described as “child pornography”) in circumstances where mere possession of “porn” or pornography per se by an adult, is not an offence.

22. [22]
    Such information as Miles had really called on him to make relevant other enquiries. He should have waited for information that may have afforded a basis for forming a “reasonable suspicion”. There was no urgency to act. Quite to the contrary, there was time to take the necessary proper steps in the investigation. Miles did not take that time.

23. [23]
    I find that Miles did not have a suspicion on grounds that are reasonable in the circumstances.

The Bunning v Cross Discretion

Discussion

24. [24]
    Ms Heywood submitted alternatively that the evidence, if obtained unlawfully, should nevertheless be admitted on an exercise of discretion on the Bunning v Cross principle, namely that evidence unlawfully obtained may nevertheless be admitted if a number of relevant considerations apply. 

25. [25]
    Ms Heywood agreed that “good faith”, on the part of Miles was not an issue. Mr Walters did not raise this. I agree that it is not in issue.

26. [26]
    The principles in Bunning v Cross (1978) 141 CLR 54 are drawn from the joint judgment of Stephen & Aicken JJ, at pp 78-80:

1 Was the unlawful act the result of mistaken belief that the act was lawful, or a deliberate disregard of the law?

2 Does the nature of the illegality affect the cogency of the evidence so obtained?

3 Was the illegal act the result of a process of deliberate cutting of corners to make the task of the investigators easier?

4 How serious is the offence charged?

5 Does an examination of the legislation indicate a deliberate intent on the part of the legislature to circumscribe the powers of the police in the interest of the public?

27. [27]
    The authorities since Bunning v Cross expanded the number of relevant considerations:

6 Is the evidence illegally obtained the only evidence guilt?

7 Would evidence likely to be removed or destroyed if its seizure is seriously delayed?

8 Would admission of the evidence cause no unfairness to the accused?

28. [28]
    I do not think that the application of the principles in Bunning v Cross and those drawn from the subsequent authorities assists the prosecution in the circumstances of this case. In my view Miles acted precipitously because of his knowledge about the accused. It makes no difference that he knew something about the accused as a reportable offender as distinct from someone else who had no criminal history who was not a reportable offender. One does not construe the Act differently as between each of those circumstances.

29. [29]
    Insofar as the principles are concerned, I consider that Miles, if in fact he had turned his mind to the issue of unlawfulness, which I doubt, was not deliberately disregarding the law; that the offence was serious; that the legislation intended to circumscribe the powers of the police in the interest of the public; the impugned evidence was the only evidence against the accused; and the admission of the evidence would in all the circumstances be unfair to the accused. Despite the serious nature of the offence and the fact the there was no other evidence implicating the accused in the commission of this offence, those matters are not sufficient in this case to warrant an exercise of discretion to admit the evidence. I consider the interest of justice and the need to maintain the integrity of the intent of the PPRA outweighs any competing interest that might have favoured the admission of the evidence on the exercise of discretion.

30. [30]
    In R v Munck [2010] QSC 416, Philippides J discussed the discretion to admit unlawfully obtained evidence.  Her Honour wrote:

“[34] Section 10 PPRA provides that the Act does not affect the common law under which a court in a criminal proceeding may exclude evidence in the exercise of its discretion. On behalf of the Crown it was submitted that, notwithstanding the finding as to the unlawfulness of the search of the applicant’s house, the Bunning v Cross discretion should be exercised in favour of admission of the evidence obtained from the search. That discretion calls for a balance to be struck between competing public interest, which in essence may be summarised as:

‘…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 tasks it is to enforce the law.’” (Bunning v Cross cited).

31. [31]
    There are many authorities that deal with evidence unlawfully obtained pursuant to search warrants and the general principles drawn from them apply equally to the circumstances of this case, although there is no issue involving search warrants or post-search approval in the circumstances here: See R v Christensen [2005] QSC 279 at [12] wherein Holmes JA iterated “The importance of strict adherence to the statutory requirements in the context of search warrants has repeatedly been emphasised”.

32. [32]
    In my view, the circumstances here do not invoke the exercise of discretion pursuant to the principles in Bunning v Cross and the subsequent authorities.

Conclusion

33. [33]
    I find that the evidence obtained by Miles was obtained unlawfully. I decline to exercise my discretion otherwise to admit the unlawfully obtained evidence. It follows that the evidence is excluded.

Orders

1. Application granted.

2. Evidence excluded as being evidence unlawfully obtained.