R v Allen[2018] QDCPR 23

DISTRICT COURT OF QUEENSLAND

Introduction

1. [1]
   The defence applies pursuant to section 590AA of the Criminal Code 1899 (Q) for the exclusion from evidence, items seized during the search of the defendant’s premises at 307 Bellmere Road, Bellmere in Queensland on 3 December 2014.

2. [2]
   The basis of the application is that the search warrant was unlawfully issued as the magistrate was misled into granting it as there were insufficient grounds giving rise to a reasonable suspicion that the items seized were at the premises.

3. [3]
   In those circumstances it is submitted the items were unlawfully seized and in the exercise of public policy discretion and the unfairness discretion the evidence should be excluded.

Charge

4. [4]
   The defendant is charged with five counts of unlawfully possessing child exploitation material which offences are alleged to have occurred between 31 August 2013 and 9 November 2014 at Bellmere.

5. [5]
   Particulars of the images found have been marked as Exhibit 39. The breakdown is as follows:

USB sticks

6. [6]
   A total of 25,858 files on the USB sticks are linked to computers found at the defendant’s residence^[1].

Evidence

7. [7]
   Ronald Pearce provided a statement to police dated 9 December 2015^[2]. In this statement he recalls that on 7 November 2014 he was at home in the paddock behind his house at 297 Bellmere Road Bellmere . He observed a plastic bag with a zip lock containing five small chrome and black things. He did not know what the items were and took them next door to his daughter’s place. She told him they were memory sticks for a computer. She then took the memory sticks to her computer to see if she could identify an owner. She told him there were pictures of naked children on them and she decided to go to the police station.

8. [8]
   Mr Pearce gave evidence at the committal hearing on 7 March 2017. He said that his statement was an accurate account of what happened.^[3] The property which he owns at Bellmere is nine and a half acres in size. It fronts onto Bellmere Road.^[4] The defendant’s property is next door and is about five acres.^[5] At the relevant time he was agisting cattle. He located the USB sticks in about mid-morning on 7 November 2014. There was a plastic bag with the memory sticks.^[6] It was in short grass and it was dry. He was checking his fences at the time as the cows tended to get hungry and would lean over to the fence to eat.^[7] He had caught cows eating plastic before. The item was in a drain which ran along the fence line. He agreed he picked up the item in his bare hands and took it to his daughter.^[8] His daughter took the item to the police station. The bag was one to two feet inside his property.^[9] It was next to the fence line he shared with the defendant. Cows would eat through the fence because the grass was greener on the other side.^[10] He estimated the item was about 100 to 150 metres from the road.^[11] His daughter looked at it and became upset because she observed child pornography on one of the USB sticks.^[12]

9. [9]
   Christine Jenkins has provided a statement dated 7 December 2015^[13]. She confirms what Mr Pearce says. She agrees that she went to the police station and spoke to a detective.

10. [10]
    Ms Jenkins also gave evidence at the committal. She adopted her statement.^[14] The defendant lived on the two acre block which was adjacent to Mr Pearce’s property. She said that on Saturday, 7 November 2014 her father came over mid-morning at about 8.30 to 9.00 am with two plastic bags containing the USBs.^[15] They were in old looking dusty bags. She touched them but was not wearing gloves. She took them to the police.

11. [11]
    Detective Senior Constable Ivan Bicanic has provided a statement dated 20 December 2015^[16]. In this statement he says that he took the complaint from Ms Jenkins on 8 November 2014. He viewed images on the drives and located child pornography. The investigation was handed to Plain Clothes Senior Constable (“PCSC”) Sheers.

12. [12]
    In an addendum statement dated 5 November 2016 Detective Bicanic says that he completed a Queensland Police Records and Information Management Exchange (“QPRIME”) Report at the time Ms Jenkins attended the Caboolture Police Station. At no stage did he list the defendant in this report. He detailed the file to PCSC Sheers.

13. [13]
    PCSC Constable Sheers has provided a statement dated 13 January 2016^[17]. He says that on 16 November 2014 he received a task on QPRIME regarding this matter. He contacted Ms Jenkins by telephone and spoke to her about the USB drives. He then attended 297 Bellmere Road, Bellmere and spoke to Mr Pearce on 26 December 2014 who showed him the location on his property where he had located the USB drives which was along the fence line neighbouring 307 Bellmere Road, Bellmere.

14. [14]
    With the information provided to him he says that he formed a reasonable suspicion that the located USB drives had come from 307 Bellmere Road, Bellmere. He conducted checks on QPRIME on that address and observed that the defendant and Catherine Currier were listed at the address. He then completed a search warrant application and had the warrant sworn out at the Caboolture Magistrates Court on Wednesday, 3 December 2014 at 8.45 am. He listed “person or persons unknown” on the warrant as at the time prior to executing the warrant he could not confirm who occupied the dwelling.

15. [15]
    At 9.35 am on 3 December 2014 he attended 307 Bellmere Road, Bellmere in company with other police officers. He proceeded up to the dwelling, knocked on the door but there was no answer. There appeared to be no-one home. He could see through the windows of the house that the house was occupied and observed computer towers in one of the rear rooms of the dwelling. He saw a motorbike with registration no. JU459 and conducted a registration check which revealed the defendant to be the registered owner. Cannabis plants were also located. It was decided because of this and the seriousness of the CEM matter that they would seek approval to force entry to the dwelling and execute the search warrant. He contacted Senior Sergeant Windsor and advised him of the intention to do this. He then contacted  Acting Inspector, Michelle Dodds for authority to force entry. He also had PCSC Mars contact police communications to arrange for a scenes of crime officer to video and photograph the execution. He also requested for a justice of the peace to be present to witness the execution of the search warrant. Cannabis plants were photographed in a greenhouse^[18]. A Justice of the Peace, John Olding attended the location. He was then contacted by Senior Sergeant Michelle Dodds who gave him the authority to execute the search warrant and force entry to the dwelling. Additional authority was given for scenes of crime to smash the pots the cannabis plants had been located in after the examination was completed. At 10.50 am entry to the dwelling was forced. No persons were home. A search was conducted and a number of computer items were located. The computers and computer related property were seized and a field property receipt was completed. He also left a notice of damage at the property due to the laundry door being slightly damaged when accessed was gained.

16. [16]
    He handed the computer towers to the electronic evidence examination unit later in December 2014.

17. [17]
    On 29 December 2014 Ms Currier, the defendant and the defendant’s solicitor attended the Caboolture Police Station and the defendant declined to answer any questions. The defendant was charged with the drug related offences and bailed to appear in court. The computer items were later examined by Senior Constable Welsby who then provided the statement on 14 May 2015. After this Officer Sheers commenced grading the relevant images and videos.

18. [18]
    A further interview was arranged for the defendant on 14 October 2015 but he declined to be interviewed. He was then charged with the CEM charges.

19. [19]
    PCSC Sheers gave evidence at the committal that he spoke to Ms Jenkins by phone and then visited Mr Pearce.^[19] Mr Pearce showed him where he had found the USBs which was along a fence line about a metre from the fence and 130 to 150 metres from the road.^[20] Mr Pearce said the property on the other side of the fence was 307 Bellmere Road.^[21] Officer Sheers gave evidence he formed a reasonable suspicion the USBs had come from that location. This was because Mr Pearce believed cows had dragged the bags over from that property because cows were always eating grass through the fence.^[22] There was one bag inside another^[23] Also Detective Bicanic told him they have located child exploitation material and he had a reasonable suspicion that the USB drives belonged to the defendant.^[24]

20. [20]
    PCSC Sheers also gave evidence before me on voir dire.

21. [21]
    A diagram was tendered as exhibit 6. This shows that the USB sticks were located 173m from the roadway, 111m from the house paddock fence and only a short distance from the fence bordering the defendant’s property. The defendant’s house is the closest one to the location of the USB sticks being about 70m away. The house is only 50m away from the Pearce fence at the closest point. No other house is near the location.

22. [22]
    Photographs of the scene were also tendered as Exhibits 7 to 38. They show that the USB sticks were found very close to the fence bordering the defendant’s property. Also the closest house is the defendant’s house. I also note the greenhouse were the cannabis plants were located is not far from the location.

23. [23]
    In cross examination the witness accepted the grass was well cut at the time. He conceded the USBs were found on the Pearce side of the fence in open ground. He also conceded the defendant’s house was about 70m away from the USBs. He also conceded he made no inquiries with Mr Jenkins or his son.

24. [24]
    Trevor Welsby has provided a statement dated 9 May 2015. He says that he examined the computer items on 27 February 2015 and located the relevant images. He produced a report which was placed onto a DVD.

25. [25]
    The application for the search warrant is dated 2 December 2014. The search warrant issued pursuant to s 151 of the Police Powers and Responsibilities Act, was signed by a magistrate on 3 December 2014 at 8.45 am.

Defence submissions

26. [26]
    The defence submits that the magistrate could not have been satisfied on the information provided^[25] that there were reasonable grounds for suspecting that a thing might provide evidence of an offence. It is submitted the only reasonable suspicion to be formed was that the USB’s came from Mr Pearce’s property or were left there by one of the other males who lived at the property next door in the Jenkins’ house. It is submitted that the search warrant application itself was so broadly stated it enabled a fishing expedition. It is submitted it is impossible to identify any evidence giving reasonable grounds for suspecting there would be CEM at the applicant’s address.

27. [27]
    Mr Holt QC submitted that it is relevant that no inquiries were made with the Jenkins family; the fact is the items were not on the defendant’s property; and it was speculative that the cows moved the items from the defendant’s property. He submitted that for the search warrant to be issued there needed to be reasonable grounds that the items were moved from the defendant’s property and such grounds did not exist. He relies on PCSC Sheer’s evidence that the only investigative steps were to rely on Mr Pearce’s information.^[26] He also submitted that no steps were taken to link the USBs to the house e.g. obtaining evidence of an IP address. He further submits that the warrant was too wide. There was no evidence upon which to justify the conclusion that there was evidence contained in the items listed.

28. [28]
    He also submitted that the Bunning v Cross^[27] discretion should not be exercised in favour of the crown bearing in mind the intrusion onto private property and the importance of the guarding of a citizen’s rights.

Crown submissions

29. [29]
    The Crown on the other hand submits that one possibility is that the cows Mr Pearce owned which would often graze on the defendant’s property could have dragged the bag across. It is further submitted that although Mr Pearce’s property is bounded by other properties none of the others were anywhere near the location where the USB sticks were found.

30. [30]
    There were also digital footprints on the USB sticks which showed that they had been used on the same computers located in the house. It is submitted that the arresting officer had a reasonable suspicion in this case given the geographical proximity of the place where the USB sticks were found to be to the applicant’s house and property.

31. [31]
    It is further submitted that even if there was no such reasonable suspicion in the exercise of the Bunning v Cross discretion the evidence should be admitted because of the importance and probative value of the evidence obtained.

Factual conclusions

32. [32]
    Officer Sheers gave evidence before me. I listened closely to his evidence and accept it. I find that Officer Sheers was acting entirely conscientiously in the carrying out of his duties in this case. One particular example in this case is that he sought approval to enter the house and requested a Justice of the Peace be present at the time. This demonstrates that he was acting entirely appropriately when executing the search warrant. Also he did not act peremptorily- he put the material before a Magistrate.

33. [33]
    The evidence also enables me to draw inferences.

34. [34]
    I first conclude it is unlikely that anyone from the turf farm or the house at the back of Mr Pearce’s property left the USBs there or dropped them. They had no reason to be there on the evidence.

35. [35]
    I readily conclude Mr Pearce did not own the USB sticks. He knew little about computers and did not even know what the USB sticks were. He had to take them to Ms Jenkins to find out what they were.

36. [36]
    I also conclude that Ms Jenkins did not own the USB sticks. There was no reason for her to go to the police with them if they were hers or she knew they belonged to anyone in her house. If they belonged to anyone in her house why would she not tell the police this? And if she was going to cover up for anyone she would not have gone to the police in the first place.

37. [37]
    I also conclude there was nothing linking the USBs to the Jenkins’ house. Ms Jenkins did not recognise the USB sticks nor anything on the USB sticks. There was nothing about them linking them to the Jenkins’ house.

38. [38]
    Having considered the geography of the landscape there would be no reasonable explanation for any of the Jenkins household to be at that fence line carrying USB sticks containing child pornography. It makes more sense that someone from the defendant’s side might walk along their fence line on occasions. It certainly makes sense now we know that cannabis was growing on the defendant’s land.

39. [39]
    The USB sticks had probably not been dropped shortly before they were found by Mr Pearce. Rather, the bags were old and dusty.

40. [40]
    I also accept the inference from Mr Pearce’s evidence that the cows may have dragged them from next door. I accept his evidence that the cows when hungry, would lean on the fence and eat the greener grass on the defendant’s side of the fence^[28]. It was a dry time with short grass on his side of the fence^[29]. The cows would also eat plastic^[30]. I do not consider the “cow theory” to be improbable.

41. [41]
    Another possibility which arises is water in the drain carried the bag from the defendant’s property to Mr Pearce’s.

42. [42]
    It seems to me the finger of suspicion here pointed to the closest neighbour to where the USBs were found. That neighbour was the defendant.

43. [43]
    I conclude that on the evidence known to PCSC Sheers at the time the allegations made in the search warrant application^[31] were correct.    

Discussion   

44. [44]
    Bearing in mind those factual findings I now turn to the relevant legislation.

45. [45]
    Section 150 of the Police Powers and Responsibilities Act 2000 (Q) provides:

“150 Search warrant application

3. (1)
   A police officer may apply for a warrant to enter and search a place (a search warrant)—

1. (a)
   to obtain evidence of the commission of an offence; or

2. (b)
   to obtain evidence that may be confiscation related evidence; or

3. (c)
   to find a vehicle that is or is to be impounded or immobilised under chapter 4 or 22; or

4. (d)
   to find control order property; or

5. (e)
   if the place is premises at which a senior police officer reasonably believes 1 or more disorderly activities have taken place and are likely to take place again—to find prohibited items at the place.

3. (2)
   The application may be made to any justice, unless the application must be made to a magistrate or Supreme Court judge under subsection (3) or (4).

3. (3)
   Unless the application must be made to a Supreme Court judge under subsection (4), the application must be made to a magistrate if the thing to be sought under the proposed warrant is—

1. (a)
   evidence of the commission of an offence only because—

1. (i)
   it is a thing that may be liable to forfeiture or is forfeited; or

2. (ii)
   it may be used in evidence for a forfeiture proceeding; or

3. (iii)
   it is a property tracking document; or

2. (b)
   evidence of the commission of an indictable offence committed in another State that, if it were committed in Queensland, would be an indictable offence in Queensland; or

3. (c)
   confiscation related evidence; or

4. (d)
   control order property; or

Example for paragraph (a)(ii)—

The search may be for evidence for which an application for a restraining order may be made under chapter 2 or chapter 3 of the Confiscation Act.

5. (e)
   a prohibited item.

3. (4)
   The application must be made to a Supreme Court judge if, when entering and searching the place, it is intended to do anything that may cause structural damage to a building.

3. (5)
   An application under this section must—

1. (a)
   be sworn and state the grounds on which the warrant is sought; and

2. (b)
   include information required under the responsibilities code about any search warrants issued within the previous year in relation to—

1. (i)
   for an application relating to SDOCO related evidence—the person convicted of the qualifying offence to which the application relates; or

2. (ii)
   for an application relating to premises at which a senior police officer reasonably believes 1 or more disorderly activities have taken place and are likely to take place again—the premises; or

3. (iii)
   for another application—

1. (A)
   the place or a person suspected of being involved in the commission of the offence or suspected offence to which the application relates; or

2. (B)
   the confiscation related activity to which the application relates.

3. (6)
   Subsection (5)(b) applies only to—

1. (a)
   information kept in a register that the police officer may inspect; and

2. (b)
   information the officer otherwise actually knows.

3. (7)
   The justice, magistrate or judge (the issuer) may refuse to consider the application until the police officer gives the issuer all the information the issuer requires about the application in the way the issuer requires.

Example—

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

Section 151 of the Police Powers and Responsibilities Act 2000 (Q) provides:

“151 Issue of search warrant

The issuer may issue a search warrant only if satisfied—

1. (a)
   there are reasonable grounds for suspecting the evidence or property mentioned in section 150(1)(a), (b), (c) or (d) is—

1. (i)
   at the place; or

2. (ii)
   likely to be taken to the place within the next 72 hours; or

2. (b)
   there are reasonable grounds for believing the prohibited items mentioned in section 150(1)(e) are—

1. (i)
   at the place; or

2. (ii)
   likely to be taken to the place within the next 72 hours.”

46. [46]
    The term “reasonably suspects” is defined in Schedule 6 to the Act as “means suspects on grounds that are reasonable in the circumstances”.

47. [47]
    This term has been considered in a number of cases.

48. [48]
    It is first to be noted that the question to be answered is one of law only. The “question is whether, having regard to the information put before the issuer, it was open to him or her to reach the requisite state of satisfaction.”^[32]

49. [49]
    In George v Rockett^[33] it was held “When a statute prescribes that there must be reasonable grounds for a state of mind – including suspicion and belief – it requires the existence of facts which are sufficient to induce that state of mind in a reasonable person … it follows that the issuing justice needs to be satisfied that there are sufficient grounds reasonably to induce that state of mind”.

50. [50]
    Further the High Court said:^[34]

1. (a)
   A suspicion and a belief are different states of mind.

2. (b)
   A suspicion is a state of conjecture or surmise where proof is lacking

3. (c)
   “…[It] is more than a mere idle wondering whether it exists or not; it is positive feeling of apprehension or mistrust, amounting to a slight opinion but without sufficient evidence.”

51. [51]
    Also as Holmes J (as her Honour then was) noted in Dobbs v Ward^[35] facts which reasonably ground a suspicion may be quite insufficient to reasonably ground a belief.

52. [52]
    As Dalton J noted in R v Bossley:^[36] “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.”

53. [53]
    There is no doubt of course that the courts should insist on strict compliance with the statutory conditions governing the issue of search warrants.^[37]

54. [54]
    In s 151 the key words are “reasonable grounds for suspecting the evidence or property …”

55. [55]
    In this case it can immediately be discounted that Mr Pearce was the owner of the USB sticks or that anyone else brought them on to his land. Why would Mr Pearce be a party to a complaint being made to the police if they were his or belonged to a friend of his?

56. [56]
    For the reasons given earlier I do not consider the finger of suspicion pointed to anyone in the Jenkins’ family.

57. [57]
    Putting then those theories aside the material fact upon which to base reasonable suspicion in this case is the geographical proximity of the place where the USB sticks were found to the defendant’s property and house. The USB sticks were found along a fence line in an isolated spot on acreage property which in itself was unusual. The paddock where the USB’s were found appears to have been a strawberry farm at one stage but at the time of finding the items was used for grazing cattle and the grass was sparse due to dry weather. Mr Pearce’s daughter and son-in-law live on the opposite side of the property. His property is 9.5 acres with the house set close to Bellmere Road, a busy sealed two lane road and the place where the USB sticks were found was 173 metres from Bellmere Road in Mr. Pearce’s back paddock. There is a fence across his property at the back of his house creating a house paddock. It is approximately 111 metres from the place where the items were found to the house paddock fence. It is only about 50 metres from Mr Pearce’s fence to the defendant’s house at the closest point and perhaps another 20 metres from the place where the USB sticks were found to the defendant’s house. This part of the defendant’s property is heavily timbered along both lines. The greenhouse at the rear of the defendant’s property was about 70 metres from the place where the USB sticks were found. The position where the USB sticks were found was isolated from the front road and from many of the six neighbouring properties the closest being the defendant’s property, about 70 metres away.

58. [58]
    Mr Pearce’s cattle are accustomed to grazing along the fence line and eating grass on the defendant’s side by reaching their heads over or through the fence. They had previously eaten plastic.

59. [59]
    In all of those circumstances I accept the Crown’s submissions that it was natural and reasonable for the arresting officer to suspect that evidence would be located in the defendant’s house.

60. [60]
    I find that the material placed in the application for the search warrant was based on reasonable evidence and I further find that the magistrate was entitled to be satisfied there were reasonable grounds for suspecting evidence or property was at 307 Bellmere Road, Bellmere relevant to the possession of child exploitation material, bearing in mind the contents of the USBs.

61. [61]
    I find that the items sought were reasonably linked to what was discovered on the USBs, bearing in mind CEM can be found on computers, tablets, drives, tapes, photographs, documents, cameras, SD cards and phones.

62. [62]
    Further the items seized were within the terms of the warrant.^[38]  

Discretion

63. [63]
    If I am wrong as to the conclusion I have reached concerning the legality of the issue of the warrant I next consider the exercise of the discretion.

64. [64]
    In Bunning v Cross^[39] Stephen and Aickin JJ considered the following factors should be considered:

1. (a)
   Whether there was a mistake on the part of the police as compared to a deliberate disregard of the law.

2. (b)
   The cogency of the evidence.

3. (c)
   The ease with which the law may have been complied with.

4. (d)
   The nature of the crime charged.

5. (e)
   The intent of the legislature.

65. [65]
    Further their Honours noted;

“What Ireland^[40] involves is no simple question of ensuring fairness to an accused but instead the weighing against each other of two competing requirements of public policy, thereby seeking 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. This being the aim of the discretionary process called for by Ireland it follows that it by no means takes as its central point the question of unfairness to the accused. It is, on the contrary, concerned with broader questions of high public policy, unfairness to the accused being only one factor which, if present, will play its part in the whole process of consideration.”^[41]

66. [66]
    I note that in George v Rockett^[42] the High Court noted the common law has long been jealous of the prima facie immunity from seizure of private possessions. There should be strict compliance with the requirements.

67. [67]
    I also note what Holmes J (as her Honour then was) said in R v Christensen^[43] that it is relevant that no proper attention had been given to the requirements and the use of the invalid warrant entailed the invasion of the privacy of citizens.

68. [68]
    I also take into account the fact the courts should deter police from acting illegally^[44].

69. [69]
    In this case I consider the police officer acted in good faith. He did not conduct an emergent search and he put the material before a Magistrate before conducting the search^[45]. He complied with the terms of the warrant. He awaited approval before entering the house.

70. [70]
    Evidence on the computers was found which links the USBs to those computers. Officer Welsby in his report^[46] notes:

1. (a)
   CEM was found on all 5 USB flash drives.

2. (b)
   25,858 child pornography files on the custom computer (item 6) can be linked to 3 of the USBs (items 7, 10 and 11).^[47]

3. (c)
   The USB flash drives are present in the Windows Registry and other places on one of the computers.

4. (d)
   49,566 files from all 5 of the USB drives are present on one computer.

5. (e)
   There were identical files found on the USB drives and the computers.

6. (f)
   A total of 67,884 files have been categorised as CEM.

71. [71]
    Further evidence of the possession of child pornography was found on the computers. I consider the possession of child pornography to be a serious offence. It is a hard offence to detect. The maximum penalty for the possession is 14 years imprisonment^[48]. It was increased from a maximum of 5 years on 29 April 2013.^[49]

72. [72]
    There are a significant number of images in this matter.

73. [73]
    Balancing all factors in this case I would exercise my discretion to admit the evidence (having regard to considerations of public policy). I also do not consider it unfair to admit the evidence^[50].

Conclusion

74. [74]
    For the reasons I have given I do not find that the search warrant was unlawfully issued. Alternatively in the exercise of my discretion, I do not exclude the evidence.

75. [75]
    I therefore dismiss the defendant’s application.