R v Hunt

Case [2014] NTSC 19

R v Hunt [2014] NTSC 19

PARTIES:THE QUEEN

v

HUNT, Paul Vincent

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY

JURISDICTION:  SUPREME COURT OF THE NORTHERN TERRITORY EXERCISING TERRITORY JURISDICTION

FILE NO:21326215

DELIVERED:  2 June 2014

HEARING DATES:  8 & 9 May 2014

JUDGMENT OF:  HILEY J

CATCHWORDS:

CRIMINAL LAW – Evidence – Judicial discretion to admit or exclude - Evidence obtained in consequence of an impropriety – Defective police investigation – Whether failure to involve Indonesian Police is unlawful or improper – Mutual Assistance in Criminal Matters Act 1987 (Cth)

-   Evidence (National Uniform Legislation) Act 2011 (NT) s138

CRIMINAL LAW – Evidence – Judicial discretion to admit or exclude - Evidence obtained in consequence of an impropriety – Defective police investigation –  Accused not cautioned or informed of rights prior to questioning -  Evidence (National Uniform Legislation) Act 2011 (NT) ss138 & 139

CRIMINAL LAW – Evidence – Judicial discretion to admit or exclude - Evidence obtained in consequence of an impropriety – Defective police investigation –  Misleading conduct of police in obtaining consent to search -  Evidence (National Uniform Legislation) Act 2011 (NT) s 138

CRIMINAL LAW – Evidence – Judicial discretion to admit or exclude - Evidence obtained in consequence of an impropriety – Defective police investigation –  Whether subsequent conduct of police affects admissibility of evidence -  Evidence (National Uniform Legislation) Act 2011 (NT) s 138

Director of Public Prosecutions v Carr (2002) 127 A Crim R 151; George v Rockett & Anor [1990] HCA 26; (1990) 170 CLR 104; Parker v Comptroller-General of Customs [2009] HCA 7, (2009) 83 ALJR 494; Perry v Northern Territory [2014] NTSC 17; R v Camilleri (2007) 68 NSWLR 720; R v Dalley (2002) 132 A Crim R 169; [2002] NSWCCA 284; R v FE [2013] NSWSC 1692; R v Liddington (1977) 18 WAR 394; R v Rondo [2001] NSWCCA 540; Ridgeway v The Queen (1995) 184 CLR 19; Robinson v Woolworths Ltd (2005) 64 NSWLR 612; [2005] NSWCCA 426; Tasmania v Crane (2004) 148 A Crim R 346; Winkler v Director of Public Prosecutions (1990) 25 FCR 79 – applied

R v Naa (2009) 76 NSWLR 271 – considered

Bollag v Attorney-General (1997) 79 FCR 198; Cohns Industries Pty Ltd v Deputy Commissioner of Taxation (Cth) (1979) 37 FLR 508; R v Charlie (1995) 121 FLR 306; R v Cornwell (2003) 57 NSWLR 82; R v Hancock [2011] NTCCA 14; R v Jones (1999) 108 A Crim R 50; R v MM [2004] NSWCCA 364; R v Su (1995) 129 FLR 120; R v Tkacz (2001) 25 WAR 77; R v Versac [2103] QSC 46; Victims Compensation Fund v Brown and Ors (2002) 54 NSWLR 668 – referred to

Crimes Act 1914 (Cth)

Evidence (National Uniform Legislation) Act (NT) ss 138 & 139

International Covenant on Civil and Political Rights, opened for signature 16…

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AGLC
R v Hunt [2014] NTSC 19
Case
[2014] NTSC 19
Decision Date

CaseChat Overview and Summary

The case of R v Hunt involves a dispute between the respondent, Hunt, and the Crown, concerning the admissibility of evidence obtained by the Australian Federal Police (AFP) during an investigation into Hunt's alleged downloading of child exploitation material. The case was heard in the Supreme Court of the Northern Territory. The central legal issues revolved around whether the evidence obtained by the AFP was tainted by improper conduct, warranting its exclusion under s 138 of the Evidence (National Uniform Legislation) Act 2011 (NT).

The court examined several facets of the police investigation, including whether the failure to involve Indonesian police was unlawful or improper, whether Hunt was cautioned or informed of his rights prior to questioning, and whether there was misleading conduct by police in obtaining consent to search. The court held that while some post-evidence impropriety could be considered, the core issue was whether the initial evidence gathering was tainted by any impropriety or illegality. The court concluded that the police investigation, while flawed in some respects, did not render the evidence inadmissible as the overall integrity of the evidence was not compromised to the extent required by s 138 of the Act.

The court's reasoning focused on the fact that while there were procedural shortcomings in the investigation, these did not rise to the level of impropriety that would necessitate the exclusion of the evidence. The court held that the evidence obtained, despite the procedural issues, was still admissible as its probative value outweighed the negative aspects of its procurement. The court also found that the failure to involve Indonesian authorities did not constitute a significant impropriety given the circumstances of the case.

The final orders of the court were to admit the contested evidence, finding that the respondent's arguments for exclusion were not substantiated by the evidence or applicable legal principles. The court found that the evidence obtained by the AFP, despite some procedural irregularities, was sufficiently reliable and relevant to be admitted in the proceedings against Hunt.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

I agree with the applicant’s contention that for evidence to be obtained improperly or in consequence of an impropriety it follows ipso facto that the impropriety must occur before the evidence is obtained. I also accept that some improper or illegal conduct after the evidence has been obtained can be taken into account as part of the subsequent balancing exercise.[18]Background and Facts The AFP operates a Child Protection Operations (CPO) unit from its Canberra headquarters. Federal Agent Peter Mellor was assigned to that unit. A technological tool used by CPO identified that between 9 April 2011 and 6 October 2011 907 child exploitation material (CEM) images were downloaded to a computer. IP addresses associated with the download were subscribed to by the applicant’s wife JH, at a particular address in Nicholls, ACT. At the time, that residence was occupied by the applicant, his wife and their two teenage children. In January 2012, the applicant, a military officer, commenced a posting in Jakarta, where he and his family were provided with accommodation. An internal AFP memorandum dated 21 May 2012 (the 21 May memorandum) entitled “CPO Investigation concerning identified CEM suspected to have been accessed by a member of ADF” was sent from Superintendent Todd Hunter NCCPO HTCO[19] to the NMHTCO[20] and MCCO.[21] FA Mellor assisted with the drafting of that document and was satisfied as to its accuracy. The memorandum included most of the facts noted above. After referring to the fact that PH had previously been posted to Indonesia it said: “From the information and inquiries to date PH would appear to be the principle (sic) suspect.” It then stated:“Intelligence at this time is strictly limited to the downloading of images however it should be noted that Indonesia is a destination of preference for offenders travelling to commit sex offences against children. Suspects identified as accessing CEM have been known to extend their access and possession of CEM to contact (CST) offending.” The memorandum set out four possible options for further investigation. AFP decided to attempt a search of the family residence in Jakarta on 31 July 2012. There being no warrant, any search could only be consensual. Police were aware that the applicant’s wife would be home on the morning of 31 July, and that PH had travelled to Darwin on business on 24 July and was staying at the Mantra Hotel on the Esplanade, Darwin. By letter dated 26 July 2012 Commander McEwan of AFP wrote to Captain Parker, the Provost Marshal of the ADF (the ADF briefing paper) providing details about the investigation. The letter indicated that the AFP had exhausted all avenues of inquiry, but had sufficient evidence to believe that a person at the residence occupied by the applicant and his family has “accessed, downloaded and potentially uploaded a substantial amount of CEM” between April and October 2011. It indicated that the AFP proposed to deploy members to Darwin to execute a search warrant on the applicant’s accommodation there and to interview him prior to leaving Darwin, and that AFP members in Indonesia would “interview family members residing in Jakarta and attempt to obtain the suspect device for forensic analysis.” The letter then said: “It must be stated that a suspect has the presumption of innocence and this course of action is designed to establish the identity of the offender.”

Evidence

Evidence Before The Court

Prior to the commencement of the voir dire on 8 May the parties filed written outlines of submissions.[4] A number of documents were tendered,[5] and the following witnesses were called: Federal Agent Sandra Booth, Federal Agent Timothy Davis, Federal Agent Christopher Sheehan, Federal Agent Peter Mellor, Federal Agent Malcolm Young, and JH. The parties subsequently provided further written submissions.[6]Exclusion of improperly or illegally obtained evidence The applicant contends that the material should be excluded because of “significant impropriety on the part of the investigating police” without which there would be no evidence of criminal conduct.[7] The principles established by the common law have now been enshrined in s 138 of the Act.Sections 138 and 139 The relevant parts of ss 138 and 139 of the Act are as follows:“138 Exclusion of improperly or illegally obtained evidence(1)Evidence that was obtained:(a)improperly or in contravention of an Australian law; or(b)in consequence of an impropriety or of a contravention of an Australian law;is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained.(2)…(3)Without limiting the matters that the court may take into account under subsection (1), it is to take into account:(a)the probative value of the evidence; and(b)the importance of the evidence in the proceeding; and(c)the nature of the relevant offence, cause of action or defence and the nature of the subject-matter of the proceeding; and(d)the gravity of the impropriety or contravention; and(e)whether the impropriety or contravention was deliberate or reckless; and(f)whether the impropriety or contravention was contrary to or inconsistent with a right of a person recognised by the International Covenant on Civil and Political Rights; and(g)whether any other proceeding (whether or not in a court) has been or is likely to be taken in relation to the impropriety or contravention; and(h)the difficulty (if any) of obtaining the evidence without impropriety or contravention of an Australian law.139Cautioning of persons(1)For the purposes of section 138(1)(a), evidence of a statement made or an act done by a person during questioning is taken to have been obtained improperly if:(a)the person was under arrest for an offence at the time; and(b)the questioning was conducted by an investigating official who was at the time empowered, because of the office that he or she held, to arrest the person; and(c)before starting the questioning the investigating official did not caution the person that the person does not have to say or do anything but that anything the person does say or do may be used in evidence.(2)… (3)The caution must be given in, or translated into, a language in which the person is able to communicate with reasonable fluency, but need not be given in writing unless the person cannot hear adequately.(4)Subsections (1), (2) and (3) do not apply so far as any Australian law requires the person to answer questions put by, or do things required by, the investigating official.(5)A reference in subsection (1) to a person who is under arrest includes a reference to a person who is in the company of an investigating official for the purpose of being questioned, if:(a)the official believes that there is sufficient evidence to establish that the person has committed an offence that is to be the subject of the questioning; o(b) the official would not allow the person to leave if the person wished to do so; or(b)the official would not allow the person to leave if the person wished to do so; or(c)the official has given the person reasonable grounds for believing that the person would not be allowed to leave if he or she wished to do so.(6)A person is not treated as being under arrest only because of subsection (5) if:(a)the official is performing functions in relation to persons or goods entering or leaving Australia and the official does not believe the person has committed an offence against a law of the Commonwealth; or(b)the official is exercising a power under an Australian law to detain and search the person or to require the person to provide information or to answer questions.”

Decision

Reasons for decision

In my opinion the reference in the memorandum to the applicant having previously been posted to Indonesia coupled with the subsequent paragraph containing general statements about Indonesia being a destination of preference for offenders and extending their activities to contact offending, was an additional reason for the statement that the applicant would appear to be the principal suspect. This is also apparent from other references in the memorandum, when the four options are being considered, such as the risks of “potential progression of online offending to contact offending placing children at risk” and that the “suspect may reoffend”.Conclusions

Ratio Decidendi

Legal Principle Established

He contended that the decision taken to conduct a police investigation within Indonesian territory without any pre-warning of the International National Police (INP) or the Indonesian Government in the face of the Treaty and legislation designed to give effect to the Treaty, was a significant impropriety initiated not at the upper levels of Government but by police officers acting unilaterally and without reference to the Attorney-General. Consideration Indonesian police were not informed of the proposed search or requested to assist with the search. In fact it appears that by 27 July 2012 a decision had been made that: “INP not to be advised until after action is taken.”[34] Sections 5, 6, and 14 of MACMA provide:“5Objects of the ActThe objects of this Act are:(a)to regulate the provision by Australia of international assistance in criminal matters when a request is made by a foreign country in respect of which powers may be exercised under this Act (whether or not in conjunction with other Australian laws); and(c)to facilitate the obtaining by Australia of international assistance in criminal matters.6Act not to limit other provision etc. of assistanceThis Act does not prevent the provision or obtaining of international assistance in criminal matters other than assistance of a kind that may be provided or obtained under this Act.14Requests by Australia for search and seizure(1)This section applies to a proceeding or investigation relating to a criminal matter involving a serious offence against an Australian law if there are reasonable grounds to believe that a thing relevant to the proceeding or investigation may be located in a foreign country.(2)If this section applies to a proceeding or investigation, Australia may request the appropriate authority of the foreign country:(a)to obtain a warrant or other instrument that, in accordance with the law of the foreign country, authorises:(i) a search for a thing relevant to the proceeding or investigation; and(ii) if such a thing, or any other thing that is or may be relevant to the proceeding or investigation is found as a result of the search—the seizure of that thing; and(b)to arrange for the thing that has been seized to be sent to Australia. (3)If the appropriate authority of the foreign country has obtained any thing relevant to the proceeding or investigation by means of a process authorised by the law of that country other than the issue (as requested by Australia) of a warrant or other instrument authorising the seizure of the thing, the thing:(a)is not inadmissible in evidence in the proceeding; or(b)is not precluded from being used for the purposes of the investigation;on the ground alone that it was obtained otherwise than in accordance with the request.” I disagree with and reject the applicant’s contention that the AFP was required to obtain assistance pursuant to the Treaty if assistance was available.[35] I also reject the contention noted in [45] above. I consider that the definition of “criminal matters” does extend to most if not all offences prescribed in Australian criminal legislation including the legislation under which the applicant has been prosecuted. In my view the words following the word “includes” in the definition are there to enlarge the normal meaning of “criminal matters”, not to limit it.[36]