SUPREME COURT OF QUEENSLAND

1. [1]
   Philippides J:  The applicant, Kelsey James Nerbas, and two co-accused, Dale Handlen and Dennis Paddison, are charged with a number of offences under Division 307 of the Criminal Code 1995 (Cth).

2. [2]
   All three defendants were originally indicted on indictment no. 73 of 2008. Nerbas’ plea of guilty to charges on that indictment was set aside by the Court of Appeal on the basis that it was not made voluntarily.^[1]  The convictions of Handlen and Paddison were also set aside by the High Court and a retrial was ordered.  In respect of those convictions, it was held that there was a miscarriage of justice in that the case was wrongly prosecuted as one of joint criminal enterprise, a basis of criminal liability for which the law did not provide.^[2]  

3. [3]
   A nolle prosequi has been entered in respect of indictment no. 73 of 2008 and the Crown has presented a new indictment against all three defendants. The applicant is charged with two counts of importing a commercial quantity of border controlled drugs (counts 4 and 10), one count of possessing a commercial quantity of border controlled drugs (count 5) and one count of attempting to possess a commercial quantity of border controlled drugs (count 11).

4. [4]
   The two importation counts concern alleged importations occurring in May and September 2006 and involving large quantities of cocaine and tablets containing MDMA and methylamphetamines being shipped from Canada.  The Crown case is that the drugs were hidden within computer monitors prior to their shipment.  This was said to have been done by the co-accused Handlen and Paddison, together with another person named Matthew Thomas Reed.  The possession count relates to the first importation and the attempted possession count relates to the second importation.  The prosecution case, as with the first trial, is to be based on the evidence of Reed (who pleaded to the charges against him). 

5. [5]
   In respect of each of the importation charges, the prosecution case is that Reed was the principal offender and that the criminal responsibility of the applicant and his co-accused is only accessorial.

6. [6]
   The particulars of the charges against the applicant are as follows. In respect of the first importation (count 4), it is alleged that the applicant aided, abetted, counselled or procured the commission of the principal offence in the following respects.

1. On about 15 May 2006, agreeing with Handlen to assist in importing drugs. (T5-40).

2. From about 15 May 2006, acting as a director of Reliable Computer Conversions Pty Ltd (“RCC”) and signatory to RCC’s Suncorp account.  (T5-33; Ex 60).

3. From about 15 May 2006, acting as a lessee of premises at Unit 18/388 Newman Road, Geebung (“Unit 18”).  (T5-34 – T5-337; Exs 61, 64).

4. On 18 May 2006, depositing $1,200 cash to the Suncorp account of RCC.  (Exs 66, 90).

5. On 23 May 2006, paying $7,337 security deposit on the lease of Unit 18. (Exs 90, 94).

6. Agreeing to the use of Unit 18 as a place of delivery of a shipping container and storage of its contents.  (T5-46 – T5-48).

7. Pending the arrival of shipping container PONU 8036345, acting as a secondary point of contact with Customs Brokers, ACP Customs Services Pty Ltd.  (T2-52).

7. [7]
   In respect of count 5, concerning the alleged possession which relates to the first importation, the particulars relied on are:

1. On 29 May 2006, purchasing hardware for $78.65 at Glenfords Tool Centre, Geebung.

2. On or about 29 May 2006, assisting to unload a shipping container full of computer monitors within some of which drugs were concealed, and storing them at Unit 18.

3. In early June 2006, assisting Handlen and Reed to extract packages of drugs from inside the computer monitors in Unit 18, and placing them in cardboard boxes.

4. In early June 2006, assisting Handlen and Reed to transfer the packages of drugs from the cardboard boxes at Unit 18 into two duffle bags and then transporting them to the Oaks Hotel, North Quay.

8. [8]
   In respect of the second importation (count 10), the particulars relied on are that the applicant aided, abetted, counselled or procured the commission of the principal offence in the following respects:

1. In June 2006, agreeing with Handlen to assist in further drug shipments.  (T5-55).

2. Between July and September 2006, acting as a director of RCC, signatory to RCC’s Suncorp account, and lessee of Unit 18.  (Exs 60, 64, 93).

3. Between July and September 2006, making rental payments on the lease of Unit 18.  (Exs 90, 94).

4. On 1 September 2006, withdrawing $6,500 from the defendant’s CBA account (Ex 111), and then depositing $7,000 to the Suncorp cheque account of RCC.  (Exs 71, 90, 92).

5. Agreeing to the use of Unit 18 as a place of delivery of a shipping container and storage of its contents.  (T5-71 – T5-72).

9. [9]
   In respect of count 11, concerning the charge of attempted possession which relates to the second importation, the particulars are:

1. In the applicant’s capacity as director of RCC and lessee of Unit 18, agreeing to the use of Unit 18 as a place of delivery of the shipping container believed to contain border controlled drugs and to the storage of its contents there.

2. At various times between 9 and 20 September 2006, discussing with Reed the progress of clearance of the shipping container and issues pertaining thereto, with a view to the container’s being delivered to Unit 18 and its contents stored there.

3. On 14 September 2006, travelling with Reed to Whimbrel Street, Fisherman’s Island to inspect the fumigation facility.

4. On 18 September 2006, depositing $2,600 cash to the Suncorp cheque account of RCC.

5. On the afternoon of 20 September 2006, in company with Reed, making telephone enquiries and visiting car rental businesses with a view to hiring a vehicle in which to transport the imported drugs.

The application

10. [10]
    The applicant has made an application pursuant to s 590AA for various orders.  The orders sought, as stated in the amended application, are as follows:

1. that a separate trial be ordered from the co-accused, Handlen;

2. the evidence of the witness Reed be excluded from the trial;

3. the evidence obtained by Matthew Adam Thomson, Senior Computer Examiner employed by the Australian Federal Police, from the examination of a hard drive located at 495 Boundary Street Spring Hill in the State of Queensland on 20 September 2006 which relates to the internet search history located on that hard drive be excluded from the evidence;

4. the evidence of acts and declarations of persons occurring outside the presence and hearing of the applicant be excluded;

5. intercepted telephone conversations and emails involving persons other than the applicant be excluded from the evidence;

6. evidence that the applicant and Reed visited the “OZ Spy” Shop on an occasion being irrelevant and be excluded; and

7. evidence that the applicant and Reed travelled to “Chalmers Yard” at the “docks” on an occasion being irrelevant and be excluded.

11. [11]
    The application came before Dalton J on 28 September 2012. Her Honour heard argument concerning para 2 of the amended application (together with separate applications by Handlen and Paddison), inter alia, for the exclusion of the evidence of Reed.  The remainder of the application was adjourned.  On 31 October 2012, her Honour delivered judgment dismissing para 2 of the applicant’s application for the exclusion of the evidence of Reed and the applications of Handlen and Paddison.^[3] 

12. [12]
    At the outset of the hearing of the adjourned application, counsel for the applicant indicated that an order in terms of para 7 of the amended application was no longer sought.

13. [13]
    However, the applicant added a further ground to the s 590 AA application, in respect of the seizure of the hard drive and the results obtained from its examination, which I will refer to as para 8 of the amended application. It was in the following terms:

“The seizure of the hard drive of the computer tower from the premises of Rentaustralia on the 5th Floor, 495 Boundary Street, Spring Hill by Matthew Thomson on 20 September 2006 was not authorised by the search warrant given to the Australian Federal Police, and therefore the results of the examination by Matthew Thomson should be excluded from the evidence to be led at the trial.”

Para 1 of the amended application (separate trial)

14. [14]
    The applicant pursued a separate trial order on the basis that the case against the applicant was significantly different from that against the co-accused, in particular Handlen. It was said that much of the evidence to be led by the prosecution focussed on the significant role allegedly played by Handlen, and much of that was inadmissible against the applicant. There was a serious and unacceptable risk that a jury would be unable to separate out admissible evidence from that which was inadmissible.

15. [15]
    The submission was illustrated by referring to evidence given by the witness Reed at the previous trial. It was contended that Reed’s evidence, for example, relating to his discussions with Handlen concerning the importation, and his activities with Handlen in support of a drug importation, which occurred in the absence of Nerbas, were inadmissible in the case against him and that there was a substantial risk that the jury would be overwhelmed by the evidence and have difficulty separating it out. The applicant’s counsel also pointed to evidence of acts and declarations of persons occurring outside the presence and hearing of the applicant and the evidence of recorded conversations which, it was contended, were inadmissible against the applicant as also supporting the need for a separate trial.

16. [16]
    The ultimate question on a separate trial application is whether directions are an adequate protection to ensure a fair trial. As explained below, it is not appropriate at this stage to make the rulings as to the admissibility of the evidence referred to in paras 4 and 5 of the amended application. Nor do I consider that a separate trial ruling is, on the present state of the material, warranted. Directions will be adequate to protect against the jury improperly using, in the trial against Nerbas, evidence only admissible in the trial against his co-accused. Of course a separate trial application might be sought to be reagitated, depending on what (if any) rulings are made in respect of paras 4 and 5 of the amended application at the conclusion of the evidence. That matter is therefore adjourned to the trial judge.

Paras 4 and 5 of the amended application (evidence of intercepted calls and acts and statements made in Nerbas’ absence)

17. [17]
    When the matter came before Dalton J, directions were made that a schedule be provided identifying the evidence which the applicant contended the prosecution should not be permitted to lead at trial and that the respondent respond to each item. That was done.

18. [18]
    In Handlen and Paddison, observations were made by the majority of the High Court (at [43]) as to the consequences of a failure to appreciate the true basis of any criminal responsibility of the applicant and his co-accused in terms of the evidentiary content of the Crown’s case as it proceeded at the previous trial. Because of an incorrect appreciation on the basis of criminal responsibility with respect to the importation charges, evidence as to the acts and statements of all accused in furtherance of the common purpose of importation had been admitted on the Tripodi principle.  The majority outlined (at [44]) three categories of admissible evidence in respect of the importation charges in the context of accessorial liability.  These concerned any evidence “tending to establish (i) the commission of the importation offences by Reed; (ii) the conduct of aiding, abetting, counselling or procuring the commission of the importation offences, and (iii) any fact or circumstance from which it was open to infer that a defendant had the intention in engaging in the conduct to assist Reed in the commission of offences of that type.” 

19. [19]
    While the prosecution does not seek to lead evidence in the case against the applicant on the basis of the co-conspirator’s rule, the respondent submitted that the mere presence or absence of the applicant was not determinative of the question of admissibility. This was because statements or acts occurring outside a defendant’s presence may constitute relevant facts or circumstances. In that regard, reference was made to the dicta of Dixon CJ, Fullagar and Windeyer JJ in Tripodi v The Queen (1961) 104 CLR 1, 7:

“It is customary at criminal trials to simply treat the presence or absence of the prisoner as decisive of the admissibility of things said and it is a pity to rob that empirical but practical and convenient test of any of its usefulness.  But often enough in an ordinary case where there is no confederation or preconcert, directions, instructions and the like although spoken in the absence of the prisoner may, according to the circumstances of the case, be admissible as res gestae or relevant facts.”

20. [20]
    Reference was also made by the respondent to Tsang v DPP (Commonwealth) [2011] VSCA 336 at [35]-[41] where the Victorian Court of Appeal identified three bases on which evidence of statements or activities absent the defendant may be led: (i) where it is relevant as part of the surrounding circumstances i.e. as circumstantial evidence independent of any allegation of common purpose; (ii) to show that the defendant entered into an agreement with others to commit the offence with which he is charged; (iii) under the co-conspirator’s rule, where the evidence assists to prove the participation of the defendant in a conspiracy to commit the offence.  (In this category the evidence is an exception to the hearsay rule but in the first two instances it is original evidence of a circumstantial kind.)

21. [21]
    The respondent’s counsel observed that the evidence the subject of objection would be led in the joint criminal proceedings as admissible against at least one or other of the co-accused (who had not thus far objected to the admission of the evidence). Moreover, it was not readily apparent that the evidence that Reed would give at the new hearing will be in precisely the same terms as that given in the previous trial. The nuances of the evidence may alter. Clearly, the actual evidence given by Reed will be critical to the issues raised in paras 4 and 5 of the amended application. I consider therefore that at this stage it is premature to make findings as to paras 4 and 5 in advance of the trial. The best time for a determination of such issues, should that be pursued, will be at the close of the evidence. Those matters are adjourned to the trial judge.

Para 3 and 8 of the amended application (the seizure of the hard drive and the evidence of the internet searches)

Relevance

22. [22]
    The applicant seeks to exclude evidence led at the first trial that, on 18 September 2006, the office computer at Nerbas’ office at 495 Boundary Street, Spring Hill was used to conduct internet searches entitled “customs drug bust monitors”, “Australian Customs Drug Bust”, and “drug bust”.

23. [23]
    There is evidence that will be led at the trial that Nerbas was a lessee of the warehouse premises at Unit 18 and that the shipping container was delivered there on 18 September 2006.  There is also evidence that it was unloaded during the afternoon by Reed and Paddison and that the pallets of monitors were stored inside the premises.  Additionally, there is evidence that in the course of the unloading, it became apparent there had been some rearrangement of the contents since the goods left Canada.  Nerbas collected Reed and Paddison from Unit 18 and drove them back to the city.  Reed gave evidence at the first trial that on the way, there was discussion about the significance of the fact that the monitors had been disturbed (T5-73 ll 10-30).  There is evidence that later on the same afternoon Nerbas was seen going to his office at 495 Boundary Street.

24. [24]
    The computer from the office was seized on 20 September 2006 when arrests of the defendants were made. Examination of it showed internet searches were conducted between about 5.00 pm and 5.20 pm on 18 September 2006. The search parameters were “Australian customs drug bust”, “drug bust in screens”, and “customs drug bust monitors”.

25. [25]
    The applicant referred to the judgment of the majority of the High Court in Handlen and Paddison (at [37] to [38]), where it was observed that evidence that Nerbas conducted internet searches on the topics mentioned (and that he and Reed visited the Oz Spy Shop where they enquired about anti‑surveillance equipment: see discussion on para 6 of the amended application below), had been left at the first trial as capable of proving “the group exercise”.  The majority noted (at [50]) that the jury in the first trial were directed that Nerbas’ internet searches were carried out “to further the alleged common purpose of gaining possession of the drugs”. But proof of the existence of any group exercise to import drugs into Australia was irrelevant to the proof of the appellant’s guilt. 

26. [26]
    The applicant referred to the majority’s judgment (at [45]) where it was stated that the question of whether the defendants were parties to a group exercise obscured the requirement to prove that each defendant engaged in conduct that in fact facilitated the commission of the importation offences by Reed. By way of example, the majority referred to evidence of conduct by Paddison, including a visit to the warehouse on 20 September 2006, which could not constitute evidence of conduct that aided the importation of the drugs by Reed, that importation having been completed.

27. [27]
    Likewise, the applicant contended, the importing had been completed by the time the internet searches were conducted, the evidence was irrelevant to the issue of whether Nerbas aided in the import of prohibited imports. As to the meaning of “import”, see R v Campbell (2008) 73 NSWLR 272.

28. [28]
    However, the respondent does not seek to use the evidence of the searches in that manner. It argued that, given the method of importation, the conduct of making the searches is relevant proof of the applicant’s state of mind on the charge of attempted possession. Additionally, it was said to be supportive of Reed’s account of the discussion had in Nerbas’ car on the way back to the city. I accept that the evidence is admissible as being relevant to the applicant’s state of mind in respect of the attempted possession charge.

Seizure authorised?

29. [29]
    In contending that the seizure of the hard drive was not authorised, the applicant referred to ss 3E and 3F Crimes Act 1914 (Cth) which specify the powers of police under a search warrant.  On behalf of the applicant it was argued that the warrant issued to Federal Agent Dwyer on 2 September 2006 referred to “computer monitors”, but made no mention of computers themselves, nor hard drives, nor laptop, nor any other computer component. It was contended that the specific reference to “computer monitors” was deliberate; it was in the computer monitors that border‑controlled drugs had been secreted.  The warrant was clear on its face, and the seizure of the hard drive was not authorised. The provisions relating to the search and seizure of property were not complied with.

30. [30]
    The applicant argued that the evidence was illegally obtained and a proper exercise of discretion warranted the exclusion of the examination results of the hard drive under the Bunning v Cross principle. Additionally, the evidence should be excluded in the exercise of the unfairness discretion: R v Swaffield (1998) 192 CLR 159 at 175-182 (Brennan CJ); 188-192 (Toohey, Gaudron & Gummow JJ).

31. [31]
    For its part, the respondent relied on s 3L Crimes Act as authorising the seizure of the hard drive. (Although s 3K Crimes Act was at one stage mentioned in submissions, the respondent did not in the end rely on that provision - the seizure was effected at the time of the search on 20 September 2006.)

32. [32]
    The question then is whether the seizure was authorised by s 3L Crimes Act.  Section 3L Crimes Act provides:

1. (1)
    The executing officer of a warrant in relation to premises, or a constable assisting, may operate electronic equipment at the warrant premises to access data (including data not held at the premises) if he or she suspects on reasonable grounds that the data constitutes evidential material. …

2. (1A)
    If the executing officer or constable assisting suspects on reasonable grounds that any data accessed by  operating the electronic equipment constitutes evidential material, he or she may:

1. (a)
    copy any or all of the data accessed by operating the electronic equipment to a disk, tape or other associated device brought to the premises; …

2. (2)
    If the executing officer or a constable assisting, after operating the equipment, finds that evidential material is accessible by doing so, he or she may:

1. (a)
    seize the equipment and any disk, tape or other associated device; …

3. (3)
    A constable may seize equipment under paragraph (2)(a) only if:

1. (a)
    it is not practicable to copy the data as mentioned in subsection (1A) or to put the material in documentary form as mentioned in paragraph (2)(b); …”

33. [33]
    In Harts Australia Ltd v Commissioner of Australian Federal Police (2002) 117 FCR 358, Drummond J in analysing s 3L Crimes Act, said at 387, [111-112]:

“Section 3L(l) empowers the executing officer to ‘operate electronic equipment at the premises to see whether evidential material is accessible by doing so if he or she believes on reasonable grounds that the operation of the equipment can be carried out without damage to the equipment’. This subsection thus authorises the executing officer to operate electronic equipment belonging to the occupier of the premises to see whether material answering the description of ‘evidential material’ is accessible by doing that.

Section 3L(2) then empowers the executing officer who has so identified the existence of ‘evidential material’ to take one of three kinds of action to take that ‘evidential material’ into the officer's control. Section 3L(2)(a) empowers the executing officer who has so located ‘evidential material’ to seize the electronic equipment and any disk, tape or other associated device in which that material is stored. Given that, as the evidence in this case shows, ‘evidential material’ may form only a part of the material stored on a disk or other device associated with the equipment found at the premises, this provision, if it stood alone, would empower the seizure of material not within the warrant so long as it is stored on a disk or tape associated with the equipment and that disk or tape does include some ‘evidential material’. But s 3L(3) limits the power conferred by s 3L(2)(a): this subsection makes it clear that the executing officer is authorised to seize the equipment and any disk, tape or other associated device on which is stored the ‘evidential material’, whether with or without other material, only if it is not practicable to take either a hard copy or an electronic copy of ‘the material’ as authorised by s 3L(2)(b) and (c) respectively.”

34. [34]
    In contending that the seizure was authorised, the respondent relied on a statement dated 31 October 2012 by the computer examiner, Matthew Thomson, acting as an assisting constable, who assisted in the search of the premises at 495 Boundary Street on 20 September 2006, in particular with respect to computer forensic support. Also in attendance was the warrant holder, Federal Agent Kim Dwyer, Federal Agent Brooke Ellis, Federal Agent Steve Kent and an independent witness, Ms Christine Fallon (as the premises were searched in the absence of the applicant).

35. [35]
    In his statement which was tendered on the hearing of the application, Thomson indicated that he examined the HP Pavilion computer which was powered and in sleep mode. His inspection identified what programmes were available and what operating system was used.  When the keyboard was activated, a Windows XP Operating System desktop was displayed.  There was also a hard drive, being a Samsung brand of 160GB capacity with serial number S0XJ10Y513253. Thomson connected the hard drive to computer equipment and examined the contents of the hard drive. During that examination of the hard drive, he located a document called “FCL Packing Declaration[1].doc” within the “My Documents” folder associated with the “HP_Owner” user account.

36. [36]
    The respondent submitted that s 3L(2), which required that the executing officer or a constable assisting, after operating the equipment in question, find that evidential material was accessible on it, was satisfied, since Thomson’s operation of the hard drive revealed such material was accessible. The document identified was an electronic template of a form of declaration required by Australian Quarantine as to whether timber packing has been used within a shipping container.  (A positive declaration triggered a requirement to fumigate the container: see Barrett evidence at T1-55 l 55ff; T1-57 l 25).  In its submissions the respondent pointed out that the blank form corresponded to three completed forms found in the applicant’s office relating to each of the imported containers.  The first, relating to the May container, was within a suspension file marked “RCC” (designated item number KD/KN002 on the property seizure record) found in a drawer of a filing cabinet in the office (see Dwyer evidence at T7-51 l 30; the suspension file and contents were exhibit 77).  The second and third, relating to the September containers, were part of item KD/KN020 found in a tray on a desk in the office (T7-53 l 20; part of exhibit 80). 

37. [37]
    The respondent thus submitted that, as a result of Thomson accessing the hard drive, it was apparent there was evidential material on the hard drive fitting the parameters of the warrant. That is, the electronic document, whether viewed in isolation or in conjunction with the completed forms in the same format, constituted evidential material. I accept those submissions and find that s 3L(2) was satisfied.

38. [38]
    The respondent contended that s 3L(2) being met, the seizure was authorised, subject to s 3L(3)(a), which specified that it not be “practicable to copy the data”.

39. [39]
    As to the relevant test in determining whether it was “not practicable to copy the data”, senior counsel for the respondent was unable to find any authority dealing with the term “practicable” for the purposes of the provision in question. However, by way of analogy, senior counsel referred to some authority where the word “impracticable” was considered in other statutory contexts. These decisions included Beck v Tuckey Pty Ltd (2004) 49 ACSR 555, where the court considered s 249G(1) of the Corporations Act which provides that “the Court may order a meeting of the company’s members to be called if it is impracticable to call the meeting in any other way”. Reference was there made to Re El Sombrero Ltd [1958] 3 WLR 349, where at 351, it was said that the word “impracticable” required the court to “examine the circumstances of the particular case and answer the question whether, as a practical matter, the desired meeting of the company can be conducted, there being no doubt, of course, that it can be convened and held.” The court in Beck also referred to dicta of Young J in Jenashare Pty Ltd v Lemrib Pty Ltd (1993) 11 ACSR 345 at 349-50 that “impracticability will cover a wide range of circumstances” including “situations where it is extremely inconvenient for a meeting to be called.”

40. [40]
    Senior counsel for the respondent also referred to Thorley v Heffernan unreported, Supreme Court of NSW, 12 September 1995, which concerned the meaning in the Constitution of a particular political party of the term “impracticable” in a clause concerned with whether the calling of a meeting of the Electorate Conference or its Committee was impracticable. McLelland J held that the expression did not mean “impossible” but directed attention to considerations of a practical rather than a theoretical nature arising out of the particular circumstances to hand. He considered that the context of the clause in question allowed for a high degree of subjective judgment.

41. [41]
    The respondent pointed out that the search commenced at 6:37 pm. The property seizure record identified that the search was concluded at 9.20 pm. The preliminary examination of the computer was completed by 7:20 pm, after which the computer was shut down and the hard drive was then examined. After locating the “FCL hacking declaration [1].doc”, in the “My Documents” folder in the “HP_owner” user account, Thomson showed the displayed contents to Dwyer and they had a conversation “in relation to whether the contents of the hard drive should be copied or the hard drive should be seized”. Thomson advised Dwyer that “creating an exact, verified copy of the contents of the hard drive would take approximately 2-4 hours due to the size of the hard drive (160GB).”  Thomson stated that, “As a result of this conversation, I was advised that the computer hard drive would be seized.”^[4]

42. [42]
    The respondent contended that the size of the 160GB hard drive and amount of data stored on it realistically made detailed examination of all its contents at the premises impracticable. It was submitted that Thomson’s statement made it apparent that consideration was given to making a copy of the hard drive on site. But given the estimated time of two to four hours for this task, a decision was made to seize the device. It was thus submitted by the respondent that for the purpose of s 3L(3) Crimes Act, it was not practicable to copy the hard drive at the premises.  Printing the contents of the hard drive was the least feasible option.  The requirements of s 3L(2) and (3) Crimes Act were met.  Accordingly, seizure of the hard drive was authorised by s 3L(2), in which case it was not necessary for the warrant itself to authorise seizure.  Since the seizure of the drive was authorised by reference to evidential material on it, it did not matter that electronic files pertaining to the internet searches were not listed on the warrant.

43. [43]
    It was accepted by the applicant that, on its face, s 3L Crimes Act authorised the seizure of equipment, provided the conditions of the section were met, notwithstanding the terms of the warrant.  However, it was contended for the applicant that it was not shown that it was not practical to copy the data in question so that s 3L(3)(a) was not satisfied. Consequently, it was submitted that the seizure of the hard drive was not authorised under the section. 

44. [44]
    While also unable to find any decided cases as to the meaning of “practicable” for the purpose of s 3L, the applicant referred to various dictionary meanings of the word “practicable.” The Oxford Online Dictionary defined “practicable” as “1. Able to be done or put into practice successfully: 2. Able to be used; useful”.  Similarly the Australian Concise Oxford Dictionary, 7^th Edition defined it as “(a).  That can be done, feasible; that can be used or traversed; real, that can be used as such”.  The Macquarie Dictionary, 5^th Edition defined “practicable” as “1. Capable of being put into practice, done or effected; feasible: 2. Capable of being used or traversed, or admitting of passage”. 

45. [45]
    The applicant argued that whether it was “practicable” to copy the data on the hard drive or not was a matter for objective consideration. Personal convenience did not come within the meaning of the term. The meaning of “practicable” in s 3L Crimes Act denoted something of real substance, stricter than the flexibility that may be given to whether a company meeting can be held for the purposes of the Corporations Act (Beck v Tuckey Pty Ltd) or for the purposes of a political party (Thorley v Heffernan) as raised in the cases referred to by the respondent.  The applicant noted that the warrant itself remained in force for seven days after the day on which the warrant was issued, and it specifically stated that the warrant could be executed at any time.  In this regard, it differed from the warrant considered in Harts Australia Ltd (2002) 117 FCR 358, 386 where that warrant only authorised seizure during the hours of 6am to 10pm on two days.

46. [46]
    As the respondent submitted, the term “practicable” is not a term of precision and one which imports an element of considering the exigencies and circumstances pertinent to each particular case. When one has regard to the particular circumstances of this case, including that of timing and that a lay person was present to witness the warrant being executed, Í am satisfied that it was not practicable to copy the data in question. It was apparent given the time the hard drive was searched that copying it would result in the search extending possibly to the early hours of the morning.

47. [47]
    I therefore find that the seizure of the hard drive was authorised by s 3L Crimes Act.  Nevertheless it is appropriate to consider whether the evidence obtained from an examination of the hard drive should be excluded in the exercise of my discretion, if my view as to the impracticability of copying the data is incorrect.

Public policy discretion

48. [48]
    In Ridgeway v The Queen (1995) 184 CLR 19 (at 30-31; 38), Mason CJ, Deane and Dawson JJ referring to the principle in Bunning v Cross explained:

“The trial judge has a discretion to exclude prosecution evidence on public policy grounds in circumstances where it has been obtained by unlawful conduct on the part of the police…

… the rationale of the discretion is that convictions obtained by means of unlawful conduct may be obtained at too high a price.  In its exercise, a trial judge must engage in a balancing process to resolve ‘the apparent conflict between the desirable goal of bringing to conviction the wrongdoer and the undesirable effect of curial approval, or even encouragement, being given to the unlawful conduct of those whose task it is to enforce the law’. The basis in principle of the discretion lies in the inherent or implied powers of our Courts to protect the integrity of their processes. In cases where it is exercised to exclude evidence on public policy grounds, it is because, in all the circumstances of the particular case, applicable considerations of ‘high public policy’ relating to the administration of criminal justice outweigh the legitimate public interest in the conviction of the guilty…

… the weight to be given to the public interest in the conviction and punishment of those guilty of crime will vary according to the degree of criminality involved.  The weight to be given to the principal considerations of public policy favouring the exclusion of the evidence – the public interest in maintaining the integrity of the Courts and in ensuring the observance of the law and minimum standards of propriety by those entrusted with powers of law enforcement – will vary according to other factors of which the most important will ordinarily be the nature, the seriousness and the effect of the illegal or improper conduct engaged in by the law enforcement officers and whether such conduct is encouraged or tolerated by those in higher authority in the police force or, in the case of illegal conduct, by those responsible for the institution of criminal proceedings.”

49. [49]
    In relation to the public policy discretion, the applicant made the following points. While the applicant accepted that the offence of attempting to possess border controlled drugs was a serious offence, it was submitted that the importance of investigating police complying with provisions allow interference with private property, and the need to ensure that police officers comply with the law in cases such as the present one, favoured the exercise of the discretion so as to exclude of the evidence. The unwarranted seizure of property is a serious matter. The evidence of the internet searches did not provide direct evidence of the applicant’s involvement in attempted possession charge.  Counsel for the applicant accepted however that the evidence may go to the applicant’s state of mind in respect of that offence.  Even so it was submitted the cogency of the evidence was not the determining factor in the exercise of this discretion.  Further, Thomson in his statement did not elaborate as to it not being practicable to copy the hard drive and no specific reason was given as to why it was impracticable to do so.

50. [50]
    The respondent, on the other hand, contended that if it were to be found that the seizure was unlawful, I should exercise the Bunning v Cross discretion in favour of the admission of the evidence obtained from an examination of the hard drive. It was submitted that the offence of attempting to possess the drugs from the September importation was one of great seriousness. The evidence extracted from the seized hard drive was significantly probative of the fault element of the offence. Its cogency was unaffected by any breach of law.  There was no deliberate transgression of the law.  In considering the estimated time frame of 2-4 hours to copy the drive, police obviously took into account the practicality of that course before the decision was made to seize.  The decision was made in a context where copying the hard drive would have extended well beyond the completion of the search in other respects (at around 9.20pm), and where a civilian was cooperating at night by oversighting the search in the absence of the occupier. The respondent did not seek to contend by way of a positive submission that the applicant was unaffected by the decision not to copy the hard drive. There was no evidence one way or the other.  The respondent also argued that the test of what is “not practicable” does not present a clear cut standard which admits of only one answer to a given situation.  On the authorities cited the concept is a flexible and somewhat imprecise one.  Both for police attempting to comply with the test in the field, and for a court reviewing the circumstances subsequently, views could legitimately differ about whether the point had been reached where copying was not practicable.  Having regard to that issue, it was submitted that, particularly in the absence of deliberate transgression, a court should be slow to take the step of excluding evidence arising from a breach of the kind in this case.  Exclusion of the evidence in this case would be a step out of proportion to the nature and extent of transgression of the law.

51. [51]
    I find the reasons advanced by the respondent to be persuasive. If my view that the seizure was not unauthorised is incorrect, I do not consider that the failure to comply with s 3L(3) was a deliberate or flagrant breach. As the respondent submitted, the question of what was practicable was one where reasonable minds might differ. That and the other arguments advanced by the respondent cause me to conclude that the public policy discretion should not be exercised so as to exclude the internet searches.

Unfairness discretion

52. [52]
    Counsel for the applicant also argued that the unfairness discretion should be exercised to exclude the evidence of internet searches. In doing so it relied on s 130 Evidence Act 1977 and Swaffield, where Toohey, Gaudron and Gummow JJ said at 189:

“Unfairness then relates to the right of an accused to a fair trial; in that situation the unfairness discretion overlaps with the power or discretion to reject evidence which is more prejudicial than probative, each looking to the risk that the accused may be improperly convicted.  While unreliability may be a touchstone of unfairness, it has been said not to be the sole touchstone …”

53. [53]
    As mentioned in R v Nerbas [2011] QCA 119, the Court of Appeal set aside the pleas of guilty entered by Nerbas at the first trial, due to an unjustified threat by his then lawyers to withdraw from the case, if he changed his instructions about the use of the computer.  It was submitted on behalf of the applicant that in order to successfully withdraw his pleas of guilty, Nerbas was required to “expose his instructions to his lawyers, and, significantly, his defence to these charges.” (At the first trial, the applicant’s initial instructions were that he did not use the computer at the relevant time and so it must have been Reed who made the computer searches). Counsel argued that the applicant was “now in the invidious position of being tried where the prosecution have been forearmed with his instructions”.  Counsel for the applicant submitted that in accordance with the onus of proof, an accused person was not required in any way to notify the prosecution of his defence, nor of matters that he would raise in his defence (the only exception being disclosure of expert evidence, which does not apply in this case).  Legal professional privilege specifically attached to instructions of an accused person to his legal representatives. Additionally, it was submitted that the evidence of the computer searches lacked any probative value, but had very grave undue prejudicial effect and ought to be excluded in accordance with the principle in R v Hasler; ex parte A-G [1987] 1 Qd R 239. Counsel for the applicant also argued that it would be very difficult for the jury to ignore the evidence of the internet searches when considering the importation charges.  There was a grave risk that the jury will use the internet searches as evidence of the applicant’s knowing involvement in the importation offences.

54. [54]
    On behalf of the respondent, it was argued that the internet searches could be attributed to the applicant, since surveillance evidence placed him in his office at the time the searches were made, and Reed was elsewhere for most of the period. The evidence was potentially probative of a guilty state of mind in relation to the count of attempted possession. Its probative value was outweighed by any prejudice. It was not unreliable and tender of the evidence in the Crown case would not give rise to a “risk that the accused may be improperly convicted:” Swaffield at 189 [54].  The Crown’s awareness of the applicant’s revelation during his appeal that he made the searches would not make his trial unfair.  He remained at liberty to test the evidence in the usual way.  Further, the applicant might or might not give evidence of himself.  For the purpose of the application he did not say that he would.  If he did give evidence his situation is no different from any accused who gives evidence at his trial and then subsequently faces a retrial.  That scenario did not warrant discretionary exclusion of evidence in the Crown case.

55. [55]
    I accept the respondent’s submissions. The evidence is probative and does not in my view result in unfairness in the sense referred to in Hasler.  Nor is there forensic unfairness such as to lead me to exclude the evidence.  The unfairness discretion does not in my view warrant exclusion of the evidence.

Para 6 of the amended application (the visit to the Spy Shop)

56. [56]
    Reed gave evidence at the first trial^[5] to the effect that as at 14 September 2006 the customs broker was explaining the delay in the clearance of the container on the basis that the container was in a queue for fumigation behind some tyres for mining trucks. He was told the mining tyres “were actually sitting on the fumigation pad where the container would have gone and that was the hold up”. Reed’s evidence was that he relayed this to the applicant who queried whether “it was a legitimate hold up or elsewhere (sic, “else we’re”) just being stalled by customs”, and suggested a drive-by the container facility (at Chalmers) to see if mining tyres were on the fumigation pad. Reed’s evidence was that the inspection was undertaken by him and the applicant.^[6]

57. [57]
    On the way back from Chalmers, at the applicant’s suggestion, they stopped at a retail outlet called “Oz Spy Shop”. Reed’s evidence was that “[Nerbas] wanted to go visit it. He asked me to make the call and find the address. We had a look around. [Nerbas] was looking at anti-surveillance equipment. He was asking the girl questions about it. He asked her if it would protect against the types of devices the Government would use”.^[7] A purchase of a SIM card duplicator was made but no anti-surveillance equipment was bought.  A police officer conducting undercover surveillance, Mr Argenti, gave evidence that he overheard some of the conversation between a female shop assistant and both Reed and Nerbas, and heard a male shop assistant say to both of them, “We don’t have anything that detects government GPS”.^[8]

58. [58]
    The respondent contended that the evidence was relevant to proof of the applicant’s state of mind on the attempted possession charge. However, the applicant contended that the evidence of the visit to the spyware shop lacked any real probative value, but had a grave prejudicial effect and ought to be excluded on the basis of the principle in Hasler, in addition to exclusion on the grounds of unfairness. The applicant argued that Reed’s evidence was not relevant to the charge of attempted possession, pointing out that Reed did not link the conversation with anything said about the container and as such it was not probative of his state of mind. Moreover there was the potential for unfair use with respect to the importation charges.

59. [59]
    The respondent contended that that argument failed to have regard to the context of the visit to the spy shop. It occurred after the concerns raised by Nerbas as to whether the explanation for the delay in procuring the container was legitimate and a drive-by of the container facility. Reed’s and Argenti’s accounts were not materially inconsistent. The evidence was probative as going to Nerbas’ state of mind as one of concern as to surveillance which prompted the visit to the spy shop which occurred in the context of a query as to the prospect that customs might be stalling the delivery of the container. (The respondent also did not accept that the evidence was irrelevant to the importation charges: R v Toe (2010) 106 SASR 203. Although did not press that matter as a primary reason for inclusion of the evidence). The respondent thus argued that any potential for misuse of the evidence in respect of the importation charges could be addressed by appropriate directions.

60. [60]
    I accept the respondent’s submissions. In my view the evidence may be seen as relevant to the applicant’s state of mind in respect of the attempted possession charge, as part of a circumstantial case put forward by the respondent. I do not consider that the evidence is unfairly prejudicial in the sense explained in Hasler; any potential for misuse in respect of the importation charges can be adequately addressed by appropriate directions.

Orders

1.  Paragraphs 3, 6 and 8 of the amended application are dismissed;

2.  Paragraphs 1, 4 and 5 of the amended application are adjourned to the trial judge.