R v Pj [2006] ACTSC 37 (2 May 2006)

Last Updated: 22 May 2006

THE QUEEN v PJ

[2006] ACTSC 37 (2 May 2006)

CRIMINAL LAW - Evidence on voir dire - search warrant - seizure of computer and computer storage devices - offence of possession of child pornography.

Crimes Act 1900, s 65, s 194, s 200

Evidence Act 1995, s 138

Human Rights Act 2004, s 30(1)

Ousley v The Queen [1997] HCA 49; (1997) 192 CLR 69

Palmer v Kizon [1999] WASC 160

R v A [2000] SASC 51

R v Cornwell [2003] NSWSC 97

R v Stankovich [2004] ACTSC 93

Adamic [2000] QSC 402, (2000) 117 A Crim R 332

Edwards (unreported, Queensland Court of Appeal, No 35 of 1998, 25 August 1998)

Southam v Smout [1964] 1 QB 308

Plenty v Dillon [1991] HCA 5; (1991) 171 CLR 635

Wendo v R [1963] HCA 19; (1963) 109 CLR 559

Collins v R [1980] FCA 72; (1980) 31 ALR 257

Criminal Law Investigation and Procedure Victoria (LBC 2000, Freckleton ed) (2.5.480)

No SCC 157 of 2004

Judge: Connolly J

Supreme Court of the ACT

Date: 2 May 2006

IN THE SUPREME COURT OF THE )

) No SCC 157 of 2004

AUSTRALIAN CAPITAL TERRITORY )

THE QUEEN

v

PJ

ORDER

Judge: Connolly J

Date: 2 May 2006

Place: Canberra

THE COURT ORDERS THAT:

1. The following evidence be admissible at trial:

(a) Record of interview between the accused and Constable Burgess of 3 September 2003.

(b) The items in a black bag seized during the search of the accused's premises on 29 August 2003 including the computer discs.

(c) Evidence as to the contents of the hard drive contained within the computer seized on 29 August 2003.

1. The accused was committed to trial in this Court on 19 July 2004 on the charge that he knowingly had in his possession photographs, video images, DVDs and written stories depicting or otherwise representing young persons engaged in acts of a sexual nature, being a depiction or representation that would offend a reasonable adult person. An order suppressing the accused's name was made by the learned Magistrate on the sole but proper basis that as the accused had school age children they would be identified by any publicity flowing from the publication of his name. That order continues in force. The matter was set down for trial in this Court in July 2005, but those dates were vacated on a joint application by the Crown and the defence due to the stated need for certain expert computer evidence to be obtained.

2. The matter was relisted for trial on 27 March 2006. At a directions hearing on 21 March 2006 counsel for the accused indicated that there would be a challenge to the search warrant and to the admissibility of a taped record of interview between the accused and police. On 27 March the accused pleaded not guilty to a single count that between the 4^th day of July 2003 and the 29^th day of August 2003 at Canberra in the Australian Capital Territory he knowingly possessed computer images, video files and compact discs depicting young persons engaged in acts of a sexual nature being depictions that would offend a reasonable adult person. The offence of possessing child pornography contrary to s 65 of the Crimes Act 1900 (the Crimes Act) carries a penalty of 500 penalty units or imprisonment for five years, or both.

3. It became apparent that the challenge by way of the voir dire would take up all of the time allocated for the trial, and the jury was not empanelled. The accused has challenged the Crown on the basis for obtaining the search warrant, irregularities in respect of the face of the warrant, irregularities said to relate to the search itself and the admissibility of a record of conversation.

The method of obtaining the search warrant

4. The law in relation to the basis by which an accused person can challenge a search warrant at trial is not entirely clear. In Ousley v The Queen [1997] HCA 49; (1997) 192 CLR 69 the High Court stated the proposition that if a warrant is challenged at trial, the trial judge is limited to looking at whether the warrant is valid on its face, and cannot go behind the warrant to consider whether the material placed before the issuing authority was sufficient to justify the issuing of the warrant, but rather is limited to considering whether the relevant evidence was lawfully seized. However, as the Crown concedes in submissions, there have been instances where a trial judge has entertained and considered an application to challenge a warrant on the basis that it was obtained by fraud or issued in bad faith (Palmer v Kizon [1999] WASC 160, R v A [2000] SASC 51, R v Cornwell [2003] NSWSC 97).

5. For the purposes of this application, I will adopt the approach taken by Howie J in R v Cornwell, where his Honour said that he would consider the issue of a listening device warrant in the context of the discretion to exclude illegally or improperly obtained evidence contained in s 138 of the Evidence Act 1995 (Cth) (the Evidence Act). His Honour said at [21] -

I am prepared to accept for present purposes that any misstatement of fact in an affidavit in support of a warrant for the use of a listening device on private premises may be an impropriety within s 138, notwithstanding that the misstatement was not intended by the person preparing the affidavit to influence the officer who was to act upon that material in determining whether to issue the warrant.

6. The evidence that emerged during the voir dire was that the officer who was in charge of the investigation and who obtained and held the warrant, Constable Astley of the Sexual Assault and Child Protection Unit of the Australian Federal Police, had received certain information from the Hi-Tech Intelligence Unit within the Australian Federal Police. This was described as information from an overseas country that identified a certain telephone number, subscribed to by the accused, as having been involved in downloading what appeared to be child pornography. He said that he had received a list of names of files, which I do not need to set out in these reasons, but which on their face referred explicitly to sexual activity involving young children. He acknowledged in cross-examination that he did not know what the files contained beyond the names, but rather relied on the information from the Hi-Tech Intelligence Unit.

7. It seems to me that there is nothing improper in this. An officer who has reasonable grounds to believe that there are drugs on premises does not "know" what is in the bags of white powder referred to by an informant or surveillance. No doubt he or she believes it is, or could be, drugs. In this case, Constable Astley did not "know" that the explicitly named files contained child pornography. They may have been innocuous, just as the white powder may turn out to be icing sugar. It seems to me that the warrant was not improperly obtained.

Irregularities on the face of the warrant

8. The search warrant obtained in this case has on its face a number of irregularities. The warrant begins by reciting the correct street address of the accused's premises, as being 39 of 12 in the correct street in the correct suburb. It then lists the block and section number for the premises, but transposes the block and section numbers. Further into the warrant, it transposes the unit and street address, by referring to 12 of 39 at the correct street and suburb.

9. There have been a disturbingly regular number of cases where warrants obtained in this jurisdiction have contained errors or irregularities on their face which should have been apparent with careful proof-reading of the document. In R v Stankovich [2004] ACTSC 93, Spender J considered a warrant that was in the form of a warrant to search a place but was directed to the search of an individual, and where the police officer who executed the warrant and searched the accused had not been named in the warrant. As legislatures grant wider and broader powers on law enforcement agencies to conduct search and seizure operations, particularly in the context of anti-terrorism laws at Federal, State and Territory levels, the legislators, the courts and the community are entitled to act on the basis that warrants will be carefully prepared.

10. In Stankovich, Spender J set out in some detail the law to be applied in considering the effect of a search warrant that did not comply with appropriate legislative requirements. He said at [14]-[17]:

As a unanimous High Court said in George v Rockett [1990] HCA 26; (1990) 170 CLR 104 ("George v Rockett") at 110:

A search warrant ... authorizes an invasion of premises without the consent of persons in lawful possession or occupation thereof. The validity of such a warrant is necessarily dependent upon the fulfilment of the conditions governing its issue. In prescribing conditions governing the issue of search warrants, the legislature has sought to balance the need for an effective criminal justice system against the need to protect the individual from arbitrary invasions of his privacy and property. Search warrants facilitate the gathering of evidence against, and the apprehension and conviction of, those who have broken the criminal law. In enacting s. 679 [of the Queensland Criminal Code], the legislature has given primacy to the public interest in the effective administration of criminal justice over the private right of the individual to enjoy his privacy and property.

Their Honours noted at 110-111:

State and Commonwealth statutes have made many exceptions to the common law position, and s. 679 is a far-reaching one. Nevertheless, in construing and applying statutes, it needs to be kept in mind that they authorize the invasion of interests which the common law has always valued highly and which, through the writ of trespass, it went to great lengths to protect. Against that background, the enactment of conditions which must be fulfilled before a search warrant can be lawfully issued and executed is to be seen as a reflection of the legislature's concern to give a measure of protection to these interests. To insist on strict compliance with the statutory conditions governing the issue of search warrants is simply to give effect to the purpose of the legislation.

 Brennan J (as he then was) observed in Alister v The Queen [1983] HCA 45; (1983-1984) 154 CLR 404 at 456:

It is of the essence of a free society that a balance is struck between the security that is desirable to protect society as a whole and the safeguards that are necessary to ensure individual liberty. But in the long run the safety of a democracy rests upon the common commitment of its citizens to the safeguarding of each man's liberty, and the balance must tilt that way: cf Sankey v. Whitlam (1978) 142 CLR, at 42, 61-62.

This emphasis on strict compliance with the "statutory conditions governing the issue of search warrants" and, I add, their execution, approaches quite closely the constitutional safeguard of "due process" in American jurisprudence. It is compatible with an important observation by Barwick CJ in The Queen v Ireland [1970] HCA 21; (1970) 126 CLR 321 at 334-5, where the Chief Justice expressed the view that evidence obtained in breach of statute would more readily warrant the rejection of the evidence than where there has been unlawfulness deriving from the requirements of the common law:

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

11. It should be remembered that search warrants, although obtained and executed by members of the Australian Federal Police, are authorised under Territory law - Crimes Act, Division 10.3 - and it follows that, in any consideration of the extent of the legislative authorisation, the Human Rights Act 2004 (the Human Rights Act) may have an impact. Section 30(1) of the Human Rights Act provides that -

In working out the meaning of a Territory law, an interpretation that is consistent with human rights is as far as possible to be preferred.

12. It seems to me that it follows that, where it is necessary to construe the terms of those provisions of the Crimes Act that authorise the issue and execution of a search warrant, the impact of those provisions of the Human Rights Act that declare aspects of the International Covenant on Civil and Political Rights to be applicable to the Australian Capital Territory could become significant. Although the Human Rights Act cannot directly "bind" the Australian Federal Police as a body established and maintained pursuant to Commonwealth law, to the extent that the Australian Federal Police in exercising their functions in providing the ACT community with policing rely on statutory powers conferred by ACT law, the limitations and extent of those powers may be impacted by the Human Rights Act .

13. It is appropriate to note, of course, that the Evidence Act which operates within the Australian Capital Territory itself incorporates the same international benchmarks of civil liberty. The statutory discretion to exclude illegally or improperly obtained evidence in s 138 of the Evidence Act provides that, in exercising the discretion, one factor that a court may take into account is "whether the impropriety or contravention was contrary to or inconsistent with the right of a person recognised by the International Covenant on Civil and Political Rights" (s 138(3)(f)).

14. Having set out the applicable law, it is appropriate to consider the specific irregularities complained of.

The incorrect addresses

15. It is clearly the law that a warrant for the search of premises must provide "a description of the warrant premises" (Crimes Act, s 194(5)(b)). In the present instance, the correct street address is provided in the description of premises section of the warrant, although the premises are described as "also known as unit 12 block [x] section [y] [named suburb]. It is common ground that the block and section figures have been transcribed, so that the block and section descriptions are incorrect.

16. There is authority for the proposition that, while it is necessary to generally identify the premises to be searched, a mere misspelling or trivial misdescription will not invalidate a warrant. In Atkinson [1976] Crim L R 307, the police had obtained a warrant to search flat 45 of a certain address, but executed it at premises that were in fact flat 30. The occupant's convictions for obstructing a police officer in the execution of his duty were set aside on the basis that the police were not lawfully on the premises. The Court of Appeal noted that -

The present decision did not apply to misspellings, or trivial errors in the description of premises. Errors of that type would not necessarily invalidate a warrant.

17. In Adamic [2000] QSC 402, (2000) 117 A Crim R 332, Holmes J considered the validity of a warrant authorising the search of "7 Whiting Street Labrador". In fact, there was a block of flats at that address, and the police in reliance on the warrant searched one flat and discovered heroin on the premises. His Honour held that the search was valid, noting that in an unreported decision the Queensland Court of Appeal in Edwards (No 35 of 1998, 25 August 1998) had said -

Even if there had been some technical insufficiency of the description of the land to which the warrant applied, the conduct of the police was fully and satisfactorily explained, and if the issue had been taken at the trial, then on the Bunning v Cross principle, the court's discretion must clearly have favoured the admission of the relevant evidence. Although full weight should be given to the need for the sufficiency of compliance with the prescribed conditions of a search warrant, since they permit infringement of the ordinary citizen's right to the privacy of his or her premises, there is no absolute rule as to identification of premises and no necessary exclusion of evidence obtained by means of a defective warrant. The premises need be identified only with reasonable particularity and in a criminal trial the evidence obtained by means of a search warrant that is defective simply because the address is incorrect will not be excluded if the error is of a technical nature only and without any police misconduct.

18. It seems to me that the warrant here clearly identifies the correct street address. If the accused had been at home on the date of the execution of the warrant, he would have immediately recognised that the warrant authorised a search of the premises with the correct street address. It seems to me that the fact that the block and section number were transposed was a mere typographical error, as was the subsequent transcriptions of the flat and street number.

19. I should make the observation that this is not to doubt the correctness of the reasoning in R v Atkinson, and I am of the view that, if a warrant sets out the incorrect street address in the description of premises, there is a real question as to its validity. The learned author of Criminal Law Investigation and Procedure Victoria (LBC 2000, Freckleton ed) states (2.5.480) that -

it is submitted that the correct identification of the premises to be searched pursuant to the warrant is critical from the perspective of the occupants to the property to be searched, particularly where the property is identified by street and flat number. If examination of the warrant indicates to the occupants that the police are at the wrong address and have no authority to enter or search then the occupants are entitled to resist police entry, close the door, and tell the police to leave.

20. It seems to me that this is correct, and that it is crucial that police take great care in the primary identification of the premises, so that the occupier can immediately see that the warrant refers to those premises. As Lord Denning MR memorably stated in Southam v Smout [1964] 1 QB 308 at 320, cited with approval in Plenty v Dillon [1991] HCA 5; (1991) 171 CLR 635 at 639 -

The poorest man may in his cottage bid defiance to all the forces of the Crown. It may be frail - its roof may shake - the wind may blow through it - the storm may enter - the rain may enter - but the King of England cannot enter - all his force dares not cross the threshold of the ruined tenement. So be it - unless he has justification by law.

21. In the present case, the warrant properly and correctly identified the correct unit number, street number and suburb and subsequent trivial errors did not, it seems to me, affect the validity of the warrant.

The execution of the warrant - the material seized

22. The warrant on its face authorised police to enter the premises and search for and seize evidential material. Evidential material was described on the face of the warrant as -

FIRST CONDITION:

Things which are:

(a) Video cameras, cameras, photographs video tapes, film, undeveloped film, paper, documents or anything else containing pornographic or sexually implicit or explicit images any child or underage person.

(b) Any and all computer equipment or other electronic storage devices capable of storing electronic data regarding above items, including magnetic tapes, floppy discs, hard drives, viewing screens, disc or tape drives, central processing units, printers, and all software necessary to retrieve electronic date, including operating systems, database, spreadsheet, work processing and graphics programs, all manuals for operation of computer and software together with all handwritten notes or printed confidential password lists to enter secured files. Also any printouts throughout location or trash re above items.

SECOND CONDITION:

Things which relate to any one or more of the following:

(a) [full name of accused] born [correct date of birth]

(b) 12 of 39 [correct street and suburb]

(c) any bills or correspondence from Optus Singtel Limited for the telephone number [ stated correct number].

THIRD CONDITION:

Things as to which there are reasonable grounds for suspecting that they will afford evidence as to the commission of the following offences(s) against the laws of the Australian Capital Territory:

(a) Possession of child pornography contrary to section 65 of the Crimes Act 1900.

23. The evidence of the police in the voir dire was that, upon attending the premises, no one was at home. The accused could not be contacted and so a locksmith was obtained in order to obtain entry. There is, properly, no challenge to the use of the locksmith to gain entry pursuant to the warrant. A computer was in plain view in the living area and Constable Astley performed certain operations on the computer. His evidence was that he had been provided with a computer program on a disc which, he understood, would perform certain searches on any personal computer to ascertain whether the computer contained sexually explicit images. Evidence was given from civilian scientific employees of the Australian Federal Police that this had been prepared because there were insufficient trained scientific computer experts to attend on all premises.

24. There is clear legislative warrant for police to operate electronic equipment at premises. Section 200 of the Crimes Act provides -

Use of electronic equipment at premises

(1) The executing officer or an assisting officer may operate electronic equipment at warrant premises to see whether evidential material is accessible by doing so if the officer believes on reasonable grounds that the operation of the equipment can be carried out without damage to the equipment.

25. I am satisfied from the evidence of Constable Astley, and the scientific expert, that he had the requisite belief, that is, that by operating the computer and inserting the disc based program prepared by the AFP computer experts, there would be no damage to the computer, and the computer would reveal whether it contained sexually explicit images. Constable Astley's evidence was that the program revealed that there were sexually explicit images located on the computer. Other police officers recalled seeing such images.

26. It seems to me that the evidence on the voir dire justifies the seizure from the premises of the computer once the computer had, in a proper manner, been operated and revealed that it contained sexually explicit images. I am satisfied that the computer from this point was properly handled and stored with appropriate continuity until the point when it became an exhibit on the voir dire.

27. Significantly, the scientific expert gave uncontradicted evidence that, once he secured access to the computer at the AFP computer laboratory, he used a specialist device to, in effect, create a precise replica of all the data stored on the hard disc, and that this replica was interrogated to reveal certain images of sexually explicit material. It seems to me that this is entirely appropriate, and the material so secured is admissible in this trial.

28. Constable Astley and the other police officers who took part in the search gave evidence that it was their experience that persons who had an interest in illegal child pornography would frequently store images in a furtive manner in that a tape or CD would have an innocuous legal title and, if played, would contain some minutes of ordinary innocuous images before the unlawful sexually explicit images would appear. In the context of video tapes, it was said that a tape would need to be viewed in its entirety before it could be said whether or not it contained offensive images, and that frequently the tape would commence to run as an ordinary, lawful film.

29. The police evidence was that a cupboard was located in the garage of the premises that was secured by a padlock, but that it was possible to see in through the gap, and that it was apparent that the cupboard contained many video tapes, many of which had the appearance of being pornographic in nature (although on their face lawful). It seems to me that the warrant properly authorised police to open this cupboard and seize the material for further examination, given what had been revealed by the computer search, and given their experience that offensive child pornographic images were frequently concealed in otherwise lawful video tapes.

30. Upon opening the cupboard, the evidence is that police located a black sports bag containing computer discs. These were seized and, upon later examination some time after the warrant was executed, revealed that they contained images that the police say are unlawful sexually explicit images of young girls. These discs are the subject of the charge.

31. The seizure of the discs was challenged on the voir dire on the basis that the seizing officer could not as a matter of law have formed a reasonable belief that the material seized contained images of child pornography. He acknowledged in cross-examination that he did not know what was on the discs (T 79 lines 26-32). But how could he have known what were on these computer discs at the time of seizure? Before going to the house, the police had attended a briefing at which they were told that the Hi-Tech Intelligence Unit within the Australian Federal Police had received information from a foreign country indicating that the accused's phone had been utilized to access and download child pornography. Upon execution of the warrant, the electronic "interrogation" of the computer revealed images that police observed and believed to be child pornography.

32. As the search continued, the locked cupboard containing the large amount of adult video material was identified. Within this locked cupboard was the black bag. It seems to me that, whilst police did not know whether the discs in the bag contained illegal material, they had an appropriate basis for a reasonable suspicion, just as police executing a drugs warrant on the basis of informant intelligence would have a reasonable belief that concealed packages of white powder where an illicit drug, even though they could not know this until later analysis was performed of the substance.

33. Having heard all of the evidence on a voir dire extending over four days in relation to the conduct of the search of the premises and the subsequent investigation of the seized computer and computer discs from the black sports bag, I am of the view that the material so obtained is relevant and admissible in the trial and that there is no reason why it should be excluded pursuant to s 138 of the Evidence Act. The tapes and videos seized from the cupboard ran to many hundreds of individual exhibits, although it seems that they are not relevant to the charges now before the Court, and apparently were what they appeared to be, that is, lawful adult material. The attending police did utilise certain time-saving devices by way of cross-referencing titles of tapes from identified pages in a police note book to an exhibit register, but it seems to me that there is no difficulty in this process given the large amount of material properly seized on the day of the search. I have no doubt that the relevant probative material going to the alleged commission of the offence, that is the computer itself and the material in the black bag, have been adequately identified and the continuity of the exhibits is not in question.

The Record of Interview

34. Following the execution of the warrant and the discovery of material said by police to amount to child pornography, the Australian Federal Police sought to interview the accused. He was an employee of a major Commonwealth agency, and police were advised by his superiors that he was at the time on duty overseas. Arrangements were made to interview him upon his return to Australia, and this occurred at Brisbane airport. He was interviewed there by a customs officer and an Australian Federal Police officer. His work computer was seized, and he was broadly advised of the nature of the enquiry the police were making. He was told that police in Canberra would want to speak to him. The Crown does not intend to tender or rely on this record of conversation at the trial.

35. There was some confusion in the police evidence as to how it came to be that contact was made with the accused the next day. He had been given the number of an investigating officer by the Brisbane based AFP member, but that officer cannot recall receiving a phone call. Her evidence, however, was that if she was not at her desk, calls would go to a central answering machine in the Sexual Assault and Child Protection Unit. It seems to me that, while nothing turns on this, it is likely that the accused did call the officer and, as a result, one of the other police officers either took the call or heard the answering machine message, and consequently police attended at his home and he agreed to attend at the City Police Station.

36. A record of interview was taped commencing at 3.17 pm on 3 September 2002. It is apparent from the Brisbane interview that the accused had that evening arrived in Australia after a flight of some hours from a Pacific Island. He left the airport around 10 pm, and told the police that he was going to a city hotel before flying to Canberra the next morning. I had the benefit of viewing the video tape of the record of interview. It seems to me that the accused was perfectly fit to be interviewed, and that the mere fact that he had undergone a relatively short international trip the day before did not render him unfit to be interviewed, or render the interview unfair.

37. The police officer who conducted the interview gave evidence on the voir dire that he formed the view that the accused was in a fit state to be interviewed and participated voluntarily in the interview. I viewed the video tape of the interview and formed the same view.

38. The accused did not give any evidence on the voir dire. While the onus is on the Crown to prove, on the balance of probabilities, that the record of interview was voluntary (Wendo v R [1963] HCA 19; (1963) 109 CLR 559), and it would follow, that the accused was fit to be interviewed, when the accused does not give any evidence that he was unwell, or felt confused or threatened, the Court is left only with the Crown evidence, and in this case, the record by way of the video tape.

39. In Collins v R [1980] FCA 72; (1980) 31 ALR 257, Muirhead J noted (at 276) that a trial judge's ruling that admissions and re-enactments were admissible -

... was based, as it had to be, on the evidence of the Crown witnesses. Not one appellant gave evidence on the voir dire or during the trial of coercion, fear, confusion, lack of understanding, or of his or her ignorance of the right of silence. If such evidence had been adduced this would have been important evidence the trial judge would have been called upon to consider.

40. After the conversations which the Crown says are in the nature of admissions, there is some further exchange, and the accused then indicates that he will continue with the interview. He is then asked some formal questions as to whether he is an Aboriginal or Torres Strait Islander (he is not), whether he had consumed alcohol recently (he said red wine the night before), or whether he was intoxicated (he said no). The record continues -

Q 40 Are you ill in any way?

A Yeah, very

Q 41 What I'm asking is do you feel able to continue with the interview?

A Oh, I'm not gonna be sick if that's what you're talking about, no. I'm just not-

Q 42 Do you feel that your mind's clear and that you're able to think and understand our questions?

A Um, if you put them straight to me, you know...(indistinct)

41. The conversation then continues in a clear and lucid manner.

42. Although the answer to question 40 gives rise to a concern, the Crown's submission is that -

On the video the defendant can be seen to smile when he says this, being an apparent response to his situation.

It seems to me that it is apparent from the video tape of the interview that when asked if he is ill in any way he answers "yeah very" with a wry smile of perhaps resignation. He was at the time an information technology professional with a major Commonwealth agency. He was being interviewed on serious charges in relation to possession of child pornography. He had made statements capable of being seen as in the nature of admissions. He would not be expected to be feeling on top of the world.

43. I am satisfied that the taped record of interview of 3 September 2003 is admissible in the Crown case.

44. In the video and the transcript it is apparent that the police followed appropriate procedures in that they informed him of the nature of the charge and the reason for the interview. He was properly cautioned and he said that he understood the caution. He was a computer professional in a major Commonwealth agency, and there is nothing to suggest that he did not fully understand the caution, but even so the police, very properly, went through the proper procedure to have the accused explain in his own words, what the caution meant. He was advised of his right to contact a lawyer, and he said at page 2 of the record of interview that he did wish to avail himself of that right. The interview was stopped for that purpose.

45. The interview was resumed. The accused said that he had contacted a legal firm and spoken to a receptionist and that arrangements were being made for a lawyer to contact him. The record of interview proceeds as follows -

Q 17 Okay. And following those telephone conversations, are you happy to continue with this interview?

A I would like to talk to a solicitor first, yeah.

Q 18 Okay. So you would like to conclude the interview and perhaps resume it again at a later stage after you've sought legal advice?

A Well I'd like to find out all the charges though.

Q19 Well at this stage I can tell you what I told you before and that is that allegations is that you were in possession of child pornography.

A Okay

Q 20 And that's what we're conducting this interview in respect of.

46. There followed questions and answers, and a further exchange that the Crown says, and I accept, is capable of being seen as in the nature of a spontaneous utterance - in that it was not responsive to a particular question, and that is a partial admission. I will not set out the nature of the statement in these reasons in advance of the trial.

47. It seems to me that there is abundant authority supportive of the admissibility of the record of interview (noting that the Crown has indicated that there are some aspects of it that could be prejudicial and will not be lead at trial). It seems to me that the statements that follow from question 20 were freely made by the accused after he had been properly cautioned and given the opportunity, of which he availed himself, in speaking to a law firm. The police then properly asked whether he wished to suspend the interview, and he then asked to be told of the charges. The police then, properly, told him of the allegations and the reasons for the interview. He then made certain statements that were, it seems to me, voluntary and made after being properly cautioned and advised of his right to suspend the interview and await the arrival of his lawyer. There is no basis, it seems to me, to exercise the discretion to exclude this material, which is probative and otherwise admissible in the Crown case against the accused on the charge of knowingly being in possession of child pornography.

I certify that the preceding forty-seven (47) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Connolly.

Associate:

Date: 2 May 2006

Counsel for the Prosecution: Ms J Whitbread

Solicitor for the Prosecution: ACT Director of Public Prosecutions

Counsel for the Defence: Mr R Thomas

Solicitor for the Defence: Garry Bates & Co

Date of hearing: 30 March 2006

Date of judgment: 2 May 2006