R v Sauer[2016] QDC 341

DISTRICT COURT OF QUEENSLAND

Introduction

1. [1]
   This application came before me and was determined on the day in anticipation of the trial being ready to proceed at the then upcoming sittings at Emerald. I stated at the conclusion of the hearing I would deliver reasons.

2. [2]
   The respondent defendant is charged on indictment with eight counts of rape and a single count each of sexual assault and depravation of liberty. In the course of the investigation the police came into possession of a camera containing incriminating images. It is alleged the camera was used to take photographs of the complainant whilst the defendant raped her. It is alleged the defendant threatened to post the images in shop windows if the complainant did not behave as she was directed to by him. The camera came into the possession of police when it was presented to the investigating officer at the front counter of a police station. The Crown seeks a ruling concerning the power of police to seize the camera and as to the lawfulness of the seizure of that evidence, or alternatively applies for the admission of the images recovered from the camera on an exercise of discretion on the Bunning v Cross principle.

3. [3]
   The principal issue in the application concerns whether or not the foyer of a police station is a public place as provided for in the Police Powers and Responsibilities Act 2000.

Facts

4. [4]
   It is alleged that in the evening of 17 May 2015 the defendant, who was the complainant’s ex-husband of around 36 years, arrived at the complainant’s residence. She allowed him in before eventually retiring to bed. After falling asleep she alleges she was awoken by the respondent who had burst into her room, verbally abused her, tied her to the bed and subsequently raped her with his penis and various objects over the course of a number of hours. It is alleged he used a camera to take photographs of her while he raped her. It is further alleged he locked her in the bedroom.

5. [5]
   The complainant complained to police of these events two days after they are alleged to have occurred. The Crown relies upon photographs taken by the respondent during the course of the offending to corroborate the rape count.

6. [6]
   In the meantime after the offending the respondent had moved in with a friend, Mr Coyne and moved his belongings to Mr Coyne’s house. About four months later police executed a warrant at that house. The investigating officer says that approximately two weeks prior to the execution of the warrant she received information of the complaint and that the sexual assault had been photographed on a camera. She was also informed that the defendant had in his possession an unregistered firearm. Under cross-examination in the course of the vior dire the investigating officer stated that the search warrant permitted her to search the subject house for a firearm but did not include an authority to seize anything else.  During the course of the execution of the warrant a firearm and ammunition was located. 

7. [7]
   Following the search Mr Coyne made contact with the defendant’s then girlfriend and arranged for her to come and collect his property. The next day she arrived and collected the defendant’s belongings which were placed in garbage bags and a suit bag. Some money was given to her with an instruction that the defendant was never to return to the house again. Mr Coyne stated that at that point the defendant’s girlfriend walked down the hallway of the premises and called out to him. He asked “what do you want?” and she stated “(the defendant) has a purple blanket that belonged to him”. The householder stated words to the effect of “Oh, I’m buggered if I know” before walking into the defendant’s room and seeing on the floor a purple blanket. He says he grabbed the blanket and out of it fell a camera and a roll of waybills. He says he grabbed the camera and the defendant’s girlfriend grabbed the waybills. He says he kept the camera for “security” and the defendant’s girlfriend took the waybills but left the blanket behind.

8. [8]
   Subsequently Mr Coyne spoke to the complainant who requested he look on the camera to see whether the camera had been the camera used, as she alleged, to photograph her being raped. The householder acquiesced following which he noticed a number of photos of a female person whom he recognised as the complainant being subject to what he surmised was a sexual assault. Accordingly he attended at the Rockhampton Police Station and handed the camera to the investigating officer who then gave him a field property receipt for the camera.

9. [9]
   It is not in contest that Mr Coyne attended the front counter of the police station enquiring after the investigator. At the time of his presentation the investigator was working in an upstairs area of the police station and she was called out to the front counter. She says she went out into the foyer where she conversed with Mr Coyne who gave her the camera. She took possession of and subsequently issued a field property receipt for it and gave the receipt to Mr Coyne. Although at the time she took possession of the camera she did not know what images were contained on it she had a belief that the images contained on it might have been relevant to the conduct of her investigation.

Relevance of the photographic evidence being lawfully obtained

10. [10]
    It is not in contest that the admissibility of the photographic evidence may be affected by a determination as to whether it was lawfully obtained by police. It was posited by the Crown that that matter will depend upon whether the front desk or foyer of a police station is a public place for the purposes of the PPRA.

11. [11]
    The Crown’s principal argument contended for in writing was that the situation was governed by s 33 of the PPRA.  However reliance upon that provision was abandoned in the course of oral submissions when it was accepted that the respondent/defendant’s submissions concerning the construction of that provision more correctly affords a proper construction of s 33(1)(a) and (c) which construction requires those provisions to be read conjunctively.

12. [12]
    However reliance was also placed upon the provisions of s 196 of the PPRA.  Relevantly it provides,

s 196 Power to seize evidence generally:

13. [13]
    The issue was whether or not the investigating officer was at a “public place” when she took possession of the camera.

14. [14]
    In R v Lloyd [2014] QDC 181 the issue of whether a police station was a public place was also the subject of consideration. In that instance Judge Durward was considering the seizure of a laptop computer containing CEM in circumstances where the computer had been taken to a police station, handed across the shop front and subsequently taken into the body of the police station into the secured area where it then was passed into the possession of the investigating officer “somewhere in the depths of the police station”.^[1]  It was at that point that the investigating officer decided to keep the computer and open it and examine its contents.  In considering the application of the PPRA particular regard was had by his Honour to the definition of ‘public place’ as provided in Schedule 6. It is defined to mean:

15. [15]
    Schedule 6 provided a number of examples of paragraph (a) including:

16. [16]
    Although defence contended on an application of R v Lloyd a police station was not a public place it was not seriously contested by the defence that the foyer of a police station ordinarily open to members of the public would not satisfy the definition of a public place as provided for in the PPRA.

17. [17]
    Nor is that conclusion inconsistent with the decision of Judge Durward in R v Lloyd.  After examining a number of authorities dealing with the concept of a public place in the context of police stations and after identifying the basis for various conflicting views on the matter each premised upon discrete legislation his Honour continued:

“[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 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.  [Other than the foyer].  In any event,…”

[Interpolation by me].

18. [18]
    His Honour proceeded to note that in the case he was considering the respondent had conceded that the seizure occurred in an office or other place within the police station and beyond the reception or front counter area. The situation here was different to that considered in R v Lloyd.  I am satisfied that the seizure occurred in this case in a public place as defined.

19. [19]
    The next issue concerns the quality of the seizure. In R v Lloyd it appears the defendant’s mother “simply gave (the computer) to the police officers”.  The basis for her authority appears to simply have been as a volunteer she being a person “who had no authority of the owner to do so.”

20. [20]
    In this case Coyne claimed that the camera as “security”. The basis for his claim of security is not clear but notwithstanding that matter the claim was made and accordingly until the issue of title was resolved he was lawfully in possession of it and the bailee of the camera. In his capacity as bailee he passed possession of the camera to the investigating officer.

21. [21]
    The term ‘seize’ is defined in the Macquarie dictionary to mean “take possession of by legal authority”. Mr Coyne as bailee purported to convey possession of the camera to police. He was so authorised until a better claim was established and it follows in my view that a lawful seizure occurred. For an illustration of this situation see Costello v Chief Constable of Derbyshire Constabulary [2001] 3 All ER 150. In that case citing Chief Constable of Merseyside Police, Porter v Chief Constable of Merseyside Police [2000] 1 All ER 209 at 225, the Court noted it is immaterial that the underlying arrangement was illegal; if the person purports to acquire title under what ultimately proves to be an illegal contract that is enough.  See Tinsley v Milligan [1993] 3 All ER 65 at 85-86.

Discussion

22. [22]
    In my view it follows that as Mr Coyne claimed the camera as security, irrespective of his entitlement, he was in lawful possession of the camera and therefore entitled to transfer possession of the camera to police. The transfer of possession took place in the foyer of the police station and in circumstances where the investigating officer reasonably suspected that the camera might be evidence of the commission of an offence in that it may have included data evidencing the commission of an offence. In my view she was permitted to a search without warrant and the material subsequently recovered was lawfully obtained.

Bunning and Cross Discretion

23. [23]
    In any event even if I were wrong in my view of the application of s 196 PPRA the Crown submits the data downloaded from the camera ought be admitted under the principles of Bunning v Cross (1978) 141 CLR 54.  The principles are drawn from the joint judgment of Stephen and Aickin JJ at pp 78-80:

Since Bunning v Cross authorities have expanded the number of relevant considerations to include:

24. [24]
    Here the investigating officer had initially issued a warrant knowing of the existence of the camera but did not at the time of seek a warrant for seizure of that item. Notwithstanding that matter, the owner of the premises, the subject of the warrant, presented at the police station and a short time later called for the investigator and handed her the camera. He knew what was on the camera and informed the investigator of those matters which in turn informed her belief, although I doubt the investigator turned her mind to s 196 of the PPRA.  Given the circumstances it is likely she formed a belief or would have had no reason to believe other than the transfer of possession of the camera was proper and lawful.  It was not a consequence of the deliberate non-compliance with process that lead to her taking possession of the camera. Nor was it the result of a process of a deliberate cutting of corners to make her task easier.  The material contained on the camera is merely corroborative of the complainant’s complaint and not the only evidence.  Given its nature and having regard to the seriousness of the offences charged a delay in the seizure of the camera may have resulted in a significant risk of the destruction of data included in the camera.  I do not think the admission of the evidence will in all the circumstances be unfair to the accused.

Conclusion

25. [25]
    I find the photographic evidence was lawfully obtained pursuant to s 196 PPRA and is admissible.  If I am wrong in respect of that matter I am satisfied that it is appropriate that it be admitted on the exercise of the discretion on the Bunning v Cross principle.

Orders