Director of Public Prosecutions v Antonielli (Ruling No 1)

[2015] VCC 1738

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

CR-12-02235

DIRECTOR OF PUBLIC PROSECUTIONS

v

VINCENT ANTHONY JOSEPH MICHAEL ANTONIELLI

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JUDGE:	HIS HONOUR JUDGE HOWARD
WHERE HELD:	Melbourne
DATE OF HEARING:	3 February 2015
DATE OF RULING:	3 February 2015
DATE OF REASONS:	9 February 2015
CASE MAY BE CITED AS:	DPP v Antonielli (Ruling No 1)
MEDIUM NEUTRAL CITATION:	[2015] VCC 1738

RULING (No 1)
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Catchwords: CRIMINAL LAW – alleged possession of child pornography contrary to s70(1) Crimes Act 1958 – objection to admissibility of 3000 images of agreed child pornography seized pursuant to search warrant issued under s.465 Crimes Act – delay of 8 weeks in executing warrant – failure to execute warrant promptly and within a reasonable time - warrant stale and of no lawful effect – discretion under s.138 Evidence Act 2009 to admit evidence improperly or illegally obtained – disputed evidence admitted in the prosecution case.    

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APPEARANCES:	Counsel	Solicitors
For the Prosecution	Mr N Hutton	Office of Public Prosecutions
For the Accused	Mr M Dempsey with Mr S Tovey	Victoria Legal Aid

HIS HONOUR:

1 The accused, Vincent Antonielli, has contested two charges of possessing child pornography contrary to s70(1) of the Crimes Act 1958.

2       Following receipt of information, police obtained a search warrant which was executed on 8 October 2010 at rented premises in Tullamarine solely occupied by the accused.  Police discovered an external hard drive belonging to the accused which E-Crime Squad officers analysed at the scene and found to contain nine images of naked girls aged about 12 (charge 1).  Police then seized a large number of computers and other storage devices and ultimately another hard drive was found to contain 2,981 images (charge 2). 

3       In the defence response and at hearing, it was conceded that the total of 2,990 images comprised child pornography as defined.[1] A categorisation chart of the child exploitation material was also not contested. 

[1]S67A Crimes Act.

4 The accused objected to the admissibility of evidence of seizure of the child pornography because there had been an unacceptable delay of 8 weeks in the execution of the search warrant, which meant it had become stale and was no longer of lawful effect. Hence, it was submitted, the disputed evidence had been improperly or illegally obtained such that, pursuant to s138(1) of the Evidence Act 2008, it should not be admitted against the accused.

5       A ruling on the point was significant because, without the evidence, there would be no prosecution case.  At the conclusion of the hearing I ruled in favour of admission and said I would give reasons in due course.  These are those reasons.

Defence

6       I will deal briefly with the accused’s defence.  He explained in a record of interview, held with police later on the day of the raid, that he was a professional photographer conducting his business, “Photo Mode”, from his home.  He explained that he did a lot of “glamour boudoir” and magazine work and that he had a website displaying his photographs (this had already been confirmed by police who described it as containing images of an erotic and sexual nature involving adults).   The accused said he had particular skills as an IT programmer.  Police found a vast array of computers, printers and other equipment at his home.  One room had been set up as a photographic studio, another had a lot of lingerie in it so that, apparently, adult models could dress up for certain types of photography.

7       During the raid, a selection of the discovered child pornography was shown to the accused.  He was asked about this material in his record of interview.  In summary, he said he had downloaded this “stuff” from the internet three or four years earlier, probably in October 2007, he had looked at it out of interest and curiosity wondering what the children were thinking in allowing themselves to be photographed in that way, but would have forgotten about it.[2]  He conceded that the girls in the photos were under 18 and of a “very young nature”.[3]  However, he had not necessarily gone looking for this type of material, it had “just popped up” and he had not paid for it.[4]  As police had not yet analysed the other computers and equipment, the accused was not questioned about the child pornography forming the basis of charge 2.

[2]Q&A. 32-33, 78, 149.

[3]Q&A. 80, 150-151.

[4]Q&A. 87. 

8       The defence response, dated 4 November 2014, states that the prosecution will be put to their proof that the accused possessed the images “in the relevant sense” and that “He denies having the requisite mental state regarding knowledge of the images that are the subject of the charges.”

Information to Crime Stoppers and issuing of the search warrant

9       On 4 June 2009, Crime Stoppers received information that the accused was photographing and videoing naked underage girls in a home studio at the premises which were ultimately raided.  This was said to have been happening over a number of years; that it involved a commercial aspect; and that several models aged under 18 had been “coerced” into this activity.

10      In evidence, it was explained by the informant, Detective S/C C.S. Elzink, of Hume CIU (Broadmeadows) that the Crime Stoppers report had “fallen through the cracks”, it was not discovered again until the completion of an audit, which led to further investigation of the matter and a Crime Stoppers report dated 22 July 2010.[5]  The analyst who supplied this report expressed the opinion that the “probability of this POI [person of interest] being involved in the production of Child Pornography is high” due to the existence of the accused’s photography business; his access to appropriate equipment; the fact that some of the images on his website were of an erotic and sexual nature; there were images of a young female “17 above”; and because in 1984 the accused had been charged with two offences involving him assisting (by photographing) in the production of an obscene article [the record shows both charges were dismissed].

[5]Exhibit VD-A. 

11      On 28 July 2010, the file was assigned to the informant for further investigation.  In evidence, he explained that having received the file he spoke with a male who had been the informer to Crime Stoppers.  This person confirmed the allegations and added that the accused had engaged in an inappropriate sexual relationship or conduct with a child under 16.  The informer agreed to check with the alleged victims to see if they were willing to come forward and make statements to police.

In the meantime, on 12 August, police successfully obtained from a Magistrate a search warrant issued pursuant to s.465 of the Crimes Act.  It was directed to the informant and other police to search for “Personal computers, recorded tapes, DVDs, CDs and hard copy prints/photographs relating to child pornographic images” at the accused’s address in respect of suspected offences of production and possession of child pornography and procurement of a minor for child pornography.[6]

[6]Exhibit VD-B.

Delay in executing the search warrant

12      As noted, the search warrant was executed on 8 October 2010, that is, 57 days after it was issued.  The informant said that when he applied for the search warrant his intention was to execute it shortly thereafter.  However, in uncontested evidence, he explained that the delay of about eight weeks was due to a number of factors outside his control. 

(a)The informant was very busy.  In addition to his normal work, he had personal responsibility for a number of major investigations, namely, a $1.57 million deception, an affray involving five offenders and the use of a machete, two drug overdoses and an assault on an underage person.  Given the workload of other detectives in his squad, it was not feasible to ask another to assist or take over the matter.  Thus, for the first 4 weeks, he was prevented from dealing with the warrant in an expeditious way. 

(b)On 15 September 2010, the informer contacted the informant and told him that he had spoken to the girls involved but none were prepared to come forward to police and give evidence.  They did not want to tarnish their reputations and possibly affect their future work or employment.  The informer denied that he had any motive to make a false complaint against the accused.  No names of any alleged victims were provided, so it was not possible for police to contact any of them.  The informant said that although he could have telephoned the informer, he had waited to be contacted by him.

(c)The accused was a professional photographer and the information obtained was uncorroborated.  The informant was concerned that there be no unnecessary inconvenience to the accused’s business resulting from the execution of the search warrant.  He had no idea of what equipment the accused had at his premises, but it was likely that everything would be seized, including his cameras.  There were major delays in having computers and the like analysed by E-Crime, although this depended on the nature of an offence.  For instance, mobile phones routinely took 12 months to analyse.  By 2013, it was likely E-Crime would take two to three years to analyse material if there were no identified victims.  Assuming police took all of the accused’s relevant equipment, it was highly likely he would be unable to conduct his business for a substantial period of time.  At an unspecified date between 12 August and 15 September, the informant discussed this concern with his superior who suggested that E-Crime specialists accompany police when they executed the search warrant. 

(d)Accordingly, on 15 September, the informant contacted a senior officer at E-Crime explaining his concern about the possible closing down of the accused’s business if computers and equipment was seized and the accused were to be later exonerated.  This would be a high price to pay.  He was advised to make a request for E-Crime assistance and this was done.[7]  It was proposed that E-Crime officers would assist on the raid by interrogating computers and other relevant equipment at the premises to see if they contained any child exploitation material.  If they did not, police would simply return the items seized, there would be no charges, and the accused’s business would not be inconvenienced.

(e)The informant had no idea how many E-Crime officers might be made available, as he said, “However many they could provide”.  The assistance was wholly at the discretion of E-Crime.  Nor did the informant know when E-Crime officers would be made available.  Eventually, the date of 8 October 2010 was fixed for the raid, following consultation with E-Crime superiors, which had probably happened shortly before that date.

(f)What was clear was that the informant had no control over, or knowledge as to, how many E-Crime officers would be made available and/or when they would provide assistance - if any or at all.  Despite the inaction over 8 weeks and the uncertainty of E-Crime involvement, the informant said he had no concerns that any relevant evidence may go missing during the period of delay.  Although the possible inconvenience to the accused’s business was a “significant factor”, the primary factor in his thinking was to find out if potential victims would come forward and assist police.  He found out on 15 September that this was not going to happen.  He was concerned that underage females were possibly been exploited against their will.  The production of child pornography involving commercial transactions was the most serious offence being investigated.  Hence, he agreed, there was a sense of urgency, perhaps of a “mid-range” kind, at least to ensure that no other children were exploited by the accused.

[7]See informant’s diary note dated 15 September 2010 (exhibit VD-C).  The faxed request to E-Crime was not produced at the hearing but this aspect of the matter was not disputed.

The raid on 8 October 2010 and items seized from the accused

13      When he executed the search warrant on 8 October, the informant had with him three other officers from Hume CIU and no less than five members of E- Crime (three police officers and two unsworn members). 

14      Police were confronted with a 3-bedroom house full of apparent disorganisation and disarray.  A significant number of computers, storage devices, printers and documentation were spread throughout a number of rooms.  Indeed, in his later interview, the accused described his main computer room as the “war room”, where he said he effectively lived, sitting in front of two monitors.[8]  In addition to a significant number of computers, there were seven printers, a televideo, a number of monitors, USB devices and a large number of loose discs, interconnecting wires everywhere and numerous papers and boxes stacked on top of each other.  All this is graphically displayed in photographs taken by police.[9]

[8]Q&A 35.

[9]See, for example, exhibit VD-D, photographs 16 and 17 and also other photos of the house.

15      The search warrant was executed at 9.05am, and the search commenced.  The E-Crime officers set themselves up in the lounge room.  They interrogated various computers and storage devices as they were brought to them.  At 11.22am, one of the officers found the nine photographs of the naked girls (charge 1).  The informant showed two of those photos to the accused.  They had a conversation about them, but evidence of what the accused said in response is not to be led by the prosecution.[10]

[10]Following discussions between the parties, defence withdrew its objection to evidence that the two photographs were shown to the accused; and the prosecution agreed not to lead evidence of what the accused said at that time in response as his statement was not made under caution.

16      Following the discovery of the nine photographs, the accused was arrested for possessing child pornography.  Police terminated the search and seized eight PC towers, two laptops, seven external/portable hard drives, a large quantity of VHS videos, CDs/DVDs and documentation, and two cameras with flash drive/cards.[11]  The work of E-Crime officers ended about 1pm.

[11]A camera (item 14) was eventually returned to the accused.

17      The seized material was then analysed by E-Crime over many days.  The analysis revealed that the accused was in possession of 3.59 million images and 43,280 movies.  It was from this vast repository that the 2,990 images of child pornography were discovered.

Legal principle and submissions

18      Legal principle, about which there was little dispute, and the parties’ submissions as to the law may be conveniently dealt with together.  I was assisted by helpful written and oral submissions on both sides.

19      Fundamentally, the law has jealously guarded common law rights which have traditionally protected a person’s home and property from unlawful intrusion.  As Lockhart J said in Crowley v Murphy, “... a person’s home is inviolable” and the power to grant a search warrant is to be exercised with great care and circumspection; it is not to be lightly granted.[12]  No challenge was mounted by the accused to the validity of the search warrant issued in this case.  However, it was correctly submitted that the courts have applied a “rule of strictness” in relation to the law concerning search warrants.[13]  As it was put by the defence, this reflects the critical fact that a warrant authorises entry into a person’s private space and thus, referring to the observations of the High Court in George v Rockett& Anor,[14] “…in construing and applying [search warrant] 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”.[15]  As observed by Spender J in Pressler v Holzberger,[16] “Judges ought not, by a wink or a nod, weaken the protection which the law gives to the rights and liberties of citizens”.[17]

[12](1981) 52 FLR 123; 34 ALR 496 (FCA), 144; 515–516. See also: In R v Tillett; Ex parte Newton (1969) 14 FLR 101 (FCA), 108, per Fox J.

[13]State of New South Wales v Corbett (2007) 230 CLR 606; see generally 610–612, per Kirby J.

[14](1990) 170 CLR 104, 110-111.

[15]Pp. 110-111.  The same principle was emphasised by the Court of Appeal (Warren CJ, Buchanan and Redlich JJA) in DPP v Marijancevic (2011) 33 VR 440 (Marijancevic), 456-457, [57], the Court citing George v Rockett and Crowley v Murphy.

[16](1989) 44 A Crim R 261.

[17]P.272, cited with approval by Sully J in R v Burrell [2001] NSWSC 120, [25].

20 At the same time, the defence submission frankly acknowledged that a s.465 search warrant contains no express time limit for its execution.[18]  Nonetheless, it was submitted, such a search warrant cannot indefinitely authorise what would otherwise be a trespass.  So much can be conceded.

[18]No point was taken by the defence as to the relevance of the expression “the next 72 hours” twice occurring in s.465.

21      The accused particularly relied on R v Applebee,[19] a decision of Higgins J in the Supreme Court of the ACT, as authority for the proposition that a search warrant, with no express time limit, must nevertheless be executed as promptly as is practicable and reasonable in the circumstances.  In Applebee, police deliberately chose not to execute a search warrant authorising seizure of two specified air compressors for four weeks whilst they kept the relevant premises under surveillance.  This was because they had a suspicion that evidence relating to offences other than that for which the warrant was obtained might be discovered.  In concluding that the warrant was stale and of no legal effect, Higgins J said:

“It would be intolerable for an authority to enter premises to search to be unlimited in time. A justice would normally assume that a warrant to search for stolen goods would be executed as promptly as was practicable and reasonable. ... Where it is proposed to search for and, if found, to seize evidence relating to an offence, urgency would be assumed. The warrant in this case was not promptly executed. It was not executed within a reasonable time. In my view, once there had been a failure to execute the warrant within a reasonable time, it ceased to authorise the entry which in fact was made. It follows that the search and seizure which occurred on 5 August 1993 was unlawful.”[20]

[19](1995) 79 A Crim R 554.

[20]Pp.557–558.  In Tavitian v Public and Environmental Health Council and Anor [2009] SASC 343 Gray J approved of this statement of principle in Applebee.

22      However, in Applebee, there were a number of other difficulties with the warrant (which it is unnecessary to detail) and the discretion to exclude evidence improperly or illegally obtained led to the exclusion of the evidence obtained from the search.  Importantly, for present purposes, the exclusion of the evidence in that case did not only depend on the issue of delay. 

23      The parties indicated that the issue as to when a search warrant becomes stale and therefore not legally enforceable or of no legal effect has not been specifically considered by the Court of Appeal in Victoria.[21] However, of significance to this issue, in 2005, the Law Reform Committee of the Victorian Parliament considered the question of imposing time limits for the operation/execution of search warrants, particularly s.465 warrants, which were noted as by far the most common type of warrant. In its report ‘Warrant Powers and Procedures’ (November 2005), the committee noted there were other provisions in the Crimes Act and Victorian legislation which did not include an expiry date, whilst there were other provisions with requirements to execute a warrant within three days, up to approximately one month.[22] The committee recommended that those Victorian Acts containing warrant provisions which had no set expiry period (including s.465 warrants) be reviewed and amended “as a matter of urgency”; and that legislation be amended to apply a clearly marked expiry period of seven days, with a possibility of an extension to a maximum of 30 days where this could be justified, to all warrants issued.

[21]In Slaveski v State of Victoria [2010] VSC 441, Kyrou J referred to Applebee at [173] but not in regard to the issue of delay.

[22]These different provisions are set out in the report at p.139-140.

24 It was telling that Parliament did not see fit to adopt its own committee’s recommendation and amend s.465 so as to make search warrants issued under that section subject to a specified time limit. This was an acceptance by Parliament, I consider, that the time in which a s.465 warrant was to be lawfully executed depended on the circumstances of any given case. A deliberate decision not to amend the section must be assumed to have been taken. After all, as submitted by the prosecution, the purpose of such a warrant is to locate and seize evidence relating to indictable offences.

25      Nevertheless, the prosecution conceded that a search warrant should be “executed as promptly as is practicable and reasonable in all the circumstances”.  I agreed this was the appropriate test to apply in assessing delay in this case.

There was unreasonable delay in executing the search warrant

26      The next question to consider was whether there was unreasonable delay in executing the search warrant in light of this test?  The accused submitted that the delay of eight weeks was unreasonable.  The informant’s workload or those of his colleagues could not justify such delay.  The answer was to have reported that problem to his superiors and other police resources or manpower should have been found.  Urgency was to be expected, although it was said to be irrelevant that other offences may have been committed or evidence destroyed in the meantime.  Nothing was done by the informant between 12 August, when the warrant was issued, and 15 September, when the informant finally spoke again with the informer.  Clearly, the informant should have proactively contacted the informer before then to determine whether any alleged victims were prepared to come forward.  The further delay of about a month, waiting on a response from E-Crime without the informant really knowing what assistance might be available, and crucially when, was inexcusable.  It was said, in effect, the informant simply waited around until E-Crime deigned to respond.  Indeed, the informant noted in evidence that E-Crime officers attending at the premises and involved in the search process, although playing an important role, later refused to supply statements for the brief due to an unexplained E-Crime “internal policy”.  During all this time, the warrant defeated the accused’s right to privacy.  While it was true to say that what might be reasonable in one case may be unreasonable in another, here, the warrant was not executed promptly and the delay was not reasonable.

27      On the other hand, the prosecution submitted that it was appropriate to take into account the significant workload facing the informant and his inability to pass the matter on to another officer.  The first month’s delay was therefore said to be reasonable.  The second month’s delay occurred because the informant’s superior suggested the advantage of having E-Crime officers on the spot.  The police acted responsibly and fairly to the accused in seeking to avoid inconvenience to his legitimate business by the unnecessary seizure of his computers and equipment.  This was a genuine concern not disputed by the defence.  Were the police not to have E-Crime assistance, everything would have been seized and there would have been an intolerable delay in the examination of the exhibits before any items could be returned to the accused, if nothing of relevance was found.  This would have been a “devastating blow” to the accused’s photography business.  The E-Crime Squad was massively overworked which caused delay to investigations in many ways. Hence, in all the circumstances, the warrant was executed as promptly as was practicable and reasonable in the circumstances.

28      I agreed with the defence submission that exposing citizens to the risk of unlawful trespass in the execution of a search warrant cannot depend on whether a police officer is busy or not.  If that be true, an officer could refrain from executing a warrant for 12 months simply because he or she was too busy to do otherwise or was on leave or seconded to another police unit.  If such a situation arises after a reasonable time had elapsed, and taking account of all reasonable demands on a busy detective, the simple solution is for the officer to have the magistrate revoke the warrant and obtain another at a later suitable time.  The alternative approach was for the officer to go to their superior, explain the problem and for other police resources to be obtained. 

29      Certainly, the Magistrate who issued the warrant had not imposed any time limit on its execution, as he was empowered to do.  However, as noted in Applebee, it must be assumed the Magistrate had an expectation that the warrant would be executed as promptly as was practicable and reasonable.

30      The informant had over four weeks in which to take some step to execute the warrant which, on his own account, he said he wanted to do expeditiously.  There was a high degree of urgency to do so because of the recent information that other children may have been exposed to further offences. 

31      I accept that enlisting the assistance of E-Crime was a very sensible idea which was designed to promote efficiency and protect the accused’s interests. Of course, police had no idea what may confront them when they entered the accused’s premises.   It is clear that none of the raiding police had the expertise or skill to interrogate the accused’s computers as was done by the E-Crime officers, who had their own computers which were connected to the accused’s equipment to access information and locate relevant images.  Had E-Crime not been present, police would have simply seized all relevant computers and equipment from the premises, to be later analysed by E-Crime.  Had the accused possessed, say, only one computer and E-Crime’s interrogation of it revealed no offending material, nothing would have been seized and no charges laid.  In this sense, there would have been the least inconvenience to the accused’s ongoing business, as was the informant’s intention.  As it turned out, given the large number of computers and other equipment which was found, all of it was going to be seized for later analysis, regardless of the disclosure of the nine images.  However, proof of the utility of E-Crime assistance may be found in the role played by those officers when the raid was actually conducted.  The finding of the nine images led immediately to the arrest of the accused.

32      But the need for such expert assistance and the sense of such a proposal should have been plain from the outset.  It should not have depended on the informant being told by his superior four weeks after the warrant was issued to make contact with E-Crime.  There should have been a far more rigorous and disciplined process and early discussion between E-Crime and the informant and/or his superior.  My distinct impression is that, once contact had been made, E-Crime sat back and decided that it would make decisions to suit itself, rather than to have acted in a timely way to facilitate the interests of investigating police.  Such an approach cannot have justified the further four week delay that occurred.

33      Accordingly, I was satisfied that the period of 57 days’ delay was unreasonable and that the search warrant was not executed as promptly as was practicable and reasonable in all the circumstances.  It was, accordingly, stale and of no legal effect at the time of its execution.  It did not authorise the police intrusion.  The items seized were improperly or illegally obtained.

Section 138 discretion should be exercised in favour of the prosecution

34 Of course, that was not the end of the matter. Having made that finding, I had to consider the operation of s.138 of the Evidence Act 2008. Pursuant to s.138(1), improperly or illegally obtained evidence “…is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting the evidence that has been obtained in the way in which the evidence was obtained”. Section 138(3) sets out a number of matters that the Court must take into account in deciding this question, in addition to any other relevant matters. I was satisfied that the desirability of admitting the disputed evidence outweighed the undesirability of admitting the evidence.

35      In Marijancevic,[23] the Court of Appeal made clear that the s.138 discretion calls for a balancing exercise to be undertaken of the kind discussed in Bunning v Cross[24] and Ridgeway v R.[25] The Court noted that whilst the onus is upon the prosecution to establish the evidence should be admitted, notwithstanding impropriety or contravention, “The qualified proscription in s 138(1) that the evidence ‘is not to be admitted unless’ indicates the importance of according appropriate weight to the effect of any impropriety or unlawfulness”.[26]  The Court continued:

“The discretionary judgment called for does not involve a simple question of ensuring fairness to an accused but instead the weighing against each other of two competing requirements of public policy, namely, the public interest in admitting reliable and probative evidence so as to secure the conviction of the guilty [and the] public interest in vindicating individual rights and deterring misconduct and maintaining the legitimacy of the system of criminal justice. The trial judge was right to emphasise as a relevant consideration the undesirable effect of curial approval being given to the unlawful conduct of those whose duty it is to enforce the law.  In doing so he was drawing upon the implied power of the courts to protect the integrity of the judicial process.”[27]

[23]P.445, [17].

[24](1978) 141 CLR 54.

[25](1995) 184 CLR 19.

[26]P.445, [17], citing Parker v Comptroller-General of Customs (2007) 243 ALR 574, 589-590, [57]-[58]. This approach in Marijancevic was distinctly approved by the Court of Criminal Appeal in New South Wales in Gideon v The Queen (2013) 280 FLR 275, 307, [174], per Bathurst CJ (with whom Beazley, Hoeben CJ at CL, Blanch and Price JJ agreed).

[27]P.445, [18], citing Bunning v Cross, 74, per Stephen and Aickin JJ.

36 I shall turn to the considerations set out in s138(3). As to (a), the probative value of the disputed evidence, the defence conceded and I was satisfied the evidence was of high probative value as it reveals the accused’s possession of almost 3,000 images of child pornography. Whilst the categorisation chart indicates that many of the images do not show sexual activity occurring, 118 depict solo/sex acts between children, 117 depict adult non-penetrative behaviour with children, 191 involve child/adult penetration and 9 involve sadism/bestiality/child abuse.

37      As to (b), the importance of the evidence in the proceeding, the defence conceded and I was satisfied the evidence was of vital importance.  This is assuredly so, for as I have already noted, without it there could be no prosecution case.  Of course, on each charge, inter alia, the prosecution must prove that the accused “knowingly” possessed the relevant material.  A helpful discussion of this element can be found in the Bench Notes.[28]  As the draft charge states, a person’s possession of a relevant item does not vary according to whether he remembers he has it or not.  Obviously, if the prosecution failed to satisfy the jury beyond reasonable doubt that the accused ever knew that he possessed the relevant item, then clearly the element of “knowing” possession would not be satisfied, for he will neither have intended to possess the item nor have known of its sexual nature.  This element of knowing possession will need to be discussed with counsel in due course.  However, an important consideration in the prosecution case is that a total of 1,526 images in charge 2 are said to be located in folders on the hard drive which were created with variations of the accused’s name “Vincent”.  These are set out compendiously in paragraph 20 of the prosecution opening dated 1 October 2014.  The significance of this evidence, according to the Crown, is that such file names are not created automatically by a computer if someone were simply browsing the internet and, for instance, something just “popped up”, to use the accused’s expression.  They are created by a user when the file is downloaded and saved.  Hence, there would appear to be potent material in the disputed evidence of the accused’s knowing possession of a substantial amount of child pornography.

[28]JCV Bench Book, paragraph 7.11.5.3.1 [14]-[16].

38      As to (c), the nature of the relevant offence, clearly, the crime of possessing child pornography is a serious one, which carries a maximum penalty of five years’ imprisonment.  Without reaching any conclusion as to what might be the appropriate sentence were the accused to be found guilty or, indeed, plead guilty, to possession of relevant child pornography, the Court of Appeal has repeatedly spoken of the seriousness of such offending and the importance of general deterrence, which always looms large in cases of this kind.[29]  Whilst there can be no automatic rule that immediate custody will always follow conviction for these offences, there are many instances where mature persons without prior convictions (such as the accused) have been immediately imprisoned for the possession of child pornography.  Whilst every case must ultimately turn on its own facts and circumstances, there can be no doubt as to the seriousness of the relevant offences in this case.

[29]See, for example:  R v Curtain [2001] VSCA 156, [25], per Vincent JA; R v Coffey [2003] VSCA 155, [30], per Callaway JA; R v Jongsma [2004] 150 A Crim R 386, [405], per Batt JA, with whom Eames JA and Gillard AJA agreed; R v SLJ (No 2) [2010] VSCA 32, per Maxwell P and Buchanan JA; DPP v Smith [2010] VSCA 215, [26], per Nettle JA.

39      As to (d), the gravity of the impropriety or contravention, there was a difference in submissions.  The accused submitted that the unacceptable delay in executing the search warrant was of “high” gravity because for two months it overrode the fundamental right the accused had to the enjoyment of his property without lawful police intervention.  On the other hand, the prosecution submitted that the impropriety was of a “low” level, especially as a valid warrant had been issued in the first place and delay occurred (in part) out of a consideration of fairness to the accused.  I agreed with the prosecution’s submission in this regard.  Compare, for example, a situation where police had no warrant whatsoever, but deliberately trespassed and took away property belonging to a suspect.  The present circumstances are far from that type of situation.

40      As to (e), whether the impropriety or contravention was deliberate or reckless, the defence conceded that the impropriety or contravention on the part of police was not deliberate or reckless.  There was, as it was put, acceptance of an absence of mala fides or malicious intent.  However, it was submitted that the informant had exercised a deliberate choice to delay the execution of the warrant, for the first month because of his workload and whilst awaiting a response from the informer, and during the second month, when he was waiting upon a response from E-Crime.  On the other hand, the prosecution submitted that, far from being deliberate or reckless conduct, the delay was due to an “accidental or technical reason”.  I considered the appropriate characterisation of the informant’s conduct was that he acted neither deliberately nor recklessly, but rather was careless in allowing other matters to overwhelm the importance of efficacious and expeditious investigatory conduct.  I did not consider that allowing the disputed evidence to be admitted in this case would constitute inappropriate curial approval of such behaviour more generally on the part of police sworn to uphold the law.

41 The defence did not rely on any other matter set out in s138(3). However, the prosecution noted that as to (f), the difficulty (if any) of obtaining the evidence without impropriety or contravention of an Australian law, there was no difficulty in having the search warrant revoked at an appropriate time because of delay and obtaining a new one at a later appropriate time. Obviously, that would have been the easier and preferable course.

42      The defence did not rely on any other basis for discretionary exclusion and I did not consider there was any other basis to exclude the disputed evidence. 

43      On balance, I was satisfied, that the prosecution had in all the circumstances proved that the desirability of admitting the disputed evidence clearly outweighed the undesirability of admitting it.  Accordingly, I ruled in favour of admitting the evidence as part of the prosecution case.

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