Commissioner of Police v Pecover

Seizure of the items 5Items 4 and 5 were seized in the course of the execution of search warrant on 18 December 2007 at Dr Pecover's residence. A total of 39 images were found on both items which, in the view of the forensic examiner, constituted child abuse material within the meaning of Div. 15A of the Crimes Act 1900 (NSW) (see s 91FB) and "child pornography material" within the meaning of s 473.1 in the Schedule to the Criminal Code Act 1995 (Cth). No charges were laid because the Commonwealth DPP considered there to be no reasonable prospect of conviction as exclusive possession could not be established. 6On 14 October 2013 Dr Pecover inquired by email of Detective Senior Sergeant Lindner about the return of seized items and, in particular, missing business, minerals exploration and mining files on seized computer drives. Detective Senior Sergeant Lindner responded by email on 15 October 2013 that some items would be returned but, in respect of the balance, she would apply to the Local Court for a "disposal order". 7On 21 October 2013 Detective Senior Sergeant Lindner filed an application in the Local Court for orders under s 219 of LEPRA that, relevantly, items 4 and 5 be forfeited to the Crown. The basis on which a forfeiture order was sought was that the items might contain child abuse material that had not yet been identified and that therefore Dr Pecover could not be lawfully entitled to their possession.

The proceedings before the Magistrate 8The application was heard by Brown LCM on 18 February 2014. Ms Ferguson, police prosecutor, appeared. Dr Pecover appeared for himself. Dr Pecover handed up submissions but did not give evidence at the hearing. 9After some preliminaries, Ms Ferguson called Detective Senior Sergeant Lindner to prove that she had personally served Dr Pecover with a certificate pursuant to s 177 of the Evidence Act 1995 (NSW) that contained the expert evidence of Senior Sergeant John McCulloch. Dr Pecover had no objection to the certificate although he submitted that Senior Sergeant McCulloch was not independent. The certificate was admitted and marked as an exhibit. 10In the certificate Senior Sergeant McCulloch deposed that he was an electronic evidence specialist employed by the NSW Police Force. He addressed the complexity of data storage. He opined that, in order to be certain that prohibited data is completely removed from a hard disk, it is necessary to identify all prohibited data but that it was not technically feasible to do so. He explained that data can be deliberately hidden or obfuscated, and that such data may be recoverable only with specialised tools or with passwords and cryptographic keys known only to the person who hid the data. He said that it is possible to conceal child abuse material inside seemingly innocuous images and documents. He said: "Not only is the person attempting selective removal at risk of breaching the law if data on a storage device is inadvertently missed, such data can potentially provide the owner a defence if he or she later commits a crime involving the possession of prohibited material using that device." "In my experience, the presence of prohibited material in 'plain view' on a hard disk is often accompanied by other material of a similar or more severe nature which has been hidden." 11His Honour then indicated that he had read Senior Sergeant McCulloch's certificate. The balance of Detective Senior Sergeant Lindner's evidence in chief was follows: Q. Detective Sergeant so in a nutshell you're relying on the expert's report in regard to this application for the disposal of property? A. I'm relying on the experts report in regards to item 4 and 5. Items 11 and 13 we could not examine due to the age and item 12 is corroded which Mr Pecover told me when we took it, it was corroded anyway so as the Magistrate's quite rightly said there wasn't anything found on 11, 13 or 12 due to corrosion so the only items that are being contended are here are items 4 and 5 and there's child abuse material located on both of those. So I was seeking a court approval to have it forfeited to the Crown for that reason. HIS HONOUR: Well that means that 11, 12 and 13 are to be returned to Mr Pecover. FERGUSON: That's the evidence in chief of this witness your Honour. 12Dr Pecover confirmed that he did not want to cross-examine Detective Senior Sergeant Lindner, who was then asked to step down. His Honour then asked Ms Ferguson what in items 4 or 5 justified a refusal to return them. Ms Ferguson responded that they contained images of child pornography to which his Honour responded that the expert certificate was "less than persuasive" and that it was "primarily speculation". Ms Ferguson offered to recall Detective Senior Sergeant Lindner. His Honour then said: "It's a matter for you how you run your case but it's not just going to stand up on the basis of what appears to me to be quite inadequate material." 13Ms Ferguson then reiterated her offer to recall Detective Senior Sergeant Lindner. The Magistrate confirmed that he accepted, as it was undisputed, that images found on items 4 and 5 amounted to child abuse material and refused leave to recall Detective Senior Sergeant Lindner. A discussion followed between the Magistrate and Dr Pecover that related to technical matters concerning computers that had not been the subject of evidence. An extract from the exchange is set out below: HIS HONOUR: Well hang on, let's deal with the drives, rather than the division of space under NTFS on both systems. Ms Ferguson, we seem to have an issue, apparently, with there being multiple hard disk drives in the Compucom tower. FERGUSON: Your Honour, my understanding is that we're talking about one contained box, the serial number for that being ANK1102662. Within that box there is the slave and the hard drive. HIS HONOUR: Yes, well that's common, but there should be two hard disk drives; one master, one slave. In 2008, that would be a fairly normal arrangement. RESPONDENT: Well if I can make a comment your Honour. HIS HONOUR: Just hang on. Now we've got reference, as Mr Pecover says, to a Seagate 40 gig. External drive with a serial number 3HE0BPBC, but he says there's another drive with a serial number what, Mr Pecover? RESPONDENT: Well the serial number you just quoted your Honour is an internal drive in that tower unit and there's a second internal drive in that tower unit which is 3HE0BJ60. Now, they operate as two independent drives. One is not a slave specifically holding the operating system. I know this because when the compute was originally built, it had two 40 gig. drives that were striped(as said) together to act as one. HIS HONOUR: They were a RAID array [Redundant Array of Inexpensive Discs], were they? RESPONDENT: Correct. Now, that RAID array failed some time - I lost the entire PHD as a result - HIS HONOUR: Yes, I've done that myself. 14Later in the proceedings, Brown LCM proposed what his Honour described as a "fairly simple solution", namely that the files in allocated space on the drives be copied onto a medium that could be returned to Dr Pecover and the drives could thereafter be trashed. His Honour continued: "They're not going to be worth anything and that solves everybody's problem. In my view the files are property and they've got to be returned. There's nothing wrong with them." 15Ms Ferguson reminded the Magistrate of the expert evidence that illegal material can be hidden within the files. The following exchange occurred: HIS HONOUR: Well that argument would mean that every computer seized could never be returned because something could be hidden in it somewhere. That's ridiculous. If these are files which are open to access and they're not encrypted, the police are able to read them if they want to. If they haven't done so, that's not Mr Pecover's problem given that the police have had it for six years. It seems to me that the files are obviously important, they're of value if they relate to his business. Since they're clearly open to access, the decisions about whether they contain images and whether they've got concealed steganographic images in them is something which nobody's ever going to answer anyway. To simply claim that because there have been some inappropriate images found, all the other files are tainted is, frankly ridiculous. Files are files. . . . FERGUSON: Your Honour, the informant officer is maintaining that the police can't give that material back because we cannot guarantee that it doesn't contain -- HIS HONOUR: But you have absolutely no evidence to establish that it does contain anything. FERGUSON: I would have to rely on that expert's report-- HIS HONOUR: But it doesn't tell me anything either. 16There was a further exchange about item 5 as follows: FERGUSON: I'm told in item 5, the offending material was found in normal files. HIS HONOUR: Well I expect it would have been. I don't imagine anybody would reconstruct it from unallocated space. It's not terribly easy to do, especially if there's been a lot of data input and output onto the drive, but we're not trying to copy unallocated files in any event. It's only going to be files whose names are listed in the file allocation tables that are going to be picked up, if you copy them, not the ones that have been erased, not partial files, not the blocks that have been left orphaned from files that have been erased and partly overridden. It's only the name files that are going to be copied and that appears to be one, clean from the prosecution's point of view and two, all that Dr Pecover wants. Dr Pecover, do you have any mans of determining whether anything is missing if you get copies of the named files? 17Later, Ms Ferguson said, of the actual computer tower, that the officer was not aware of where it was located. His Honour responded: "Well, that's a police problem. It's his property and they've got to give it back to him." 18His Honour then made the orders set out above but did not give reasons.

Relevant legislation 19Part 17 of LEPRA provides for property in police custody. Division 1 deals with confiscated knives and other dangerous articles and implements. Division 2 deals with other property. It relevantly applies to property that is in police custody in connection with an offence, whether or not proceedings for the offence have been commenced: s 216(1)(a) of LEPRA. Section 218 relevantly provides that a police officer who seizes property must return it to the owner or person who had lawful possession of the thing before it was seized if the police officer is satisfied that it is lawful for the person to have possession of the thing. Section 219 relevantly provides: Disposal of property on application to court (1) A court may, on application by any person, make an order that property to which this Division applies: (a) be delivered to the person who appears to be lawfully entitled to the property, or (b) if that person cannot be ascertained, be dealt with as the court thinks fit. (2) In determining an application the court may do any one or more of the following things: . . . (d) order, if the person who is lawfully entitled to the property cannot be ascertained, that the property be forfeited to the Crown, (e) make any necessary incidental or ancillary orders. . . . (4) If the property is not money or is not fit or suitable for sale, or fails to sell at public auction, it is to be disposed of in accordance with the directions of the Commissioner. (5) An order under subsection (2) (a) that provides for the extinguishment, whether in whole or in part, of any interest in property operates to extinguish the interest according to its tenor. 20Section 144 of the Evidence Act relevantly provides: Matters of common knowledge (1) Proof is not required about knowledge that is not reasonably open to question and is: (a) common knowledge in the locality in which the proceeding is being held or generally, or (b) capable of verification by reference to a document the authority of which cannot reasonably be questioned. (2) The judge may acquire knowledge of that kind in any way the judge thinks fit. (3) The court (including, if there is a jury, the jury) is to take knowledge of that kind into account. (4) The judge is to give a party such opportunity to make submissions, and to refer to relevant information, relating to the acquiring or taking into account of knowledge of that kind as is necessary to ensure that the party is not unfairly prejudiced. 21Section 177 of the Evidence Act relevantly provides that evidence of a person's opinion may be adduced by tendering a certificate signed by the person that states the person's expertise and sets out an opinion that the person holds and that is expressed to be wholly or substantially based on that knowledge. There are requirements of notice and service on the other party, who may, with notice, require the person to be called.

Ground (a): alleged denial of procedural fairness by improperly rejecting Senior Sergeant McCulloch's evidence 22The Commissioner contended that, in circumstances where no objection was taken to Senior Sergeant McCulloch's expert certificate and he was not cross-examined, it was a denial of procedural fairness not to accept his evidence and to make an order that was implicitly (in light of the failure to give reasons) founded on a rejection of his evidence. 23As a matter of general principle, a tribunal of fact is entitled to accept or reject evidence, in whole or in part, whether it has been challenged or not. The assessment of evidence is pre-eminently a matter for the tribunal of fact and such assessment does not, without more, give rise to a question of law: Azzopardi v Tasmanian UEB Industries Limited (1985) 4 NSWLR 139. The principles of procedural fairness do, however, apply to such assessment and may, in certain circumstances, give rise to a legitimate expectation that a party will be put on notice if evidence which is not challenged is not to be accepted. Whether there has been a denial of procedural fairness is a matter of "practical injustice": Re Minister for Immigration and Multicultural and Indigenous Affairs; ex parte Lam [2003] HCA 6; 214 CLR 1 at [34] and [38] per Gleeson CJ. 24Practical injustice has been found as a result of a denial of procedural fairness in circumstances where, for example, a judge stops a party from developing a submission as to why an expert's opinion ought not be accepted and then makes findings in accordance with the expert's opinion: Stead v State Government Insurance Commission [1986] HCA 54; 161 CLR 141; or when a judge fails to indicate that a custodial sentence is being contemplated on an appeal by the accused from a non-custodial sentence: Parker v DPP (1992) 28 NSWLR 282 (Parker). The sphinx-like judge, once venerated as an ideal, is no longer viewed favourably because of the practical injustice that can result when a party is not put on notice of what is to come: Vakauta v Kelly [1989] HCA 44; 167 CLR 568 at 571 per Brennan, Deane and Gaudron JJ. 25Where a conclusion is not obviously open, or might not have reasonably been anticipated, procedural fairness may require an opportunity to be given to make further submissions. As Kirby P said in Parker at 296: Fair procedure requires, at least for important decisions and those critical to the determination of a case, that considerations of importance to the judicial officer's conclusions should be drawn to the notice of the parties affected or their representatives so that a fair opportunity is presented for contrary argument to persuade the judicial decision-maker to a different view. In the present case, the Magistrate made it clear in the exchanges that he did not think much of Senior Sergeant McCulloch's certificate and that he did not consider it to provide a sufficient reason for the computer drives not to be returned to Dr Pecover. To that extent the police prosecutor was put on notice that she could not assume that his Honour would accept the opinion notwithstanding that it was not the subject of challenge by objection or cross-examination. Indeed the exchanges indicated that his Honour did not fully appreciate the gravamen of Senior Sergeant McCulloch's evidence. Nonetheless, these exchanges occurred before the orders were made and, indeed, from the time the certificate was tendered. It was open to the police prosecutor to seek to persuade the Magistrate of the force and effect of the evidence or to apply to have Senior Sergeant McCulloch attend to explain his evidence further. Although it might have been perverse or irrational (in the Azzopardi sense) for the Magistrate not to accept the expert evidence, I do not consider that it can fairly be said that his Honour did not put the police prosecutor on notice of the view he had formed that it was of limited utility during the course of the hearing before orders were made. 26I am not satisfied that (a) has been made out.

Ground (c): denial of procedural fairness by not acceding to the prosecutor's application to call further evidence 27As referred to above, the police prosecutor sought to recall Detective Senior Sergeant Lindner when it became apparent that the Magistrate had reservations (the basis of which was not articulated) about the expert certificate of Senior Sergeant McCulloch. The police prosecutor may have considered that Detective Senior Sergeant Lindner, as the police officer in charge of the matter, could explain to the Magistrate, perhaps better than she herself was able to, the reason she was seeking the forfeiture order by reference to Senior Sergeant McCulloch's evidence. Although the Magistrate did not raise his concerns about Senior Sergeant McCulloch's certificate with Detective Senior Sergeant Lindner, I do not consider that his Honour was obliged to, since the matters in the certificate constituted expert evidence and there was no suggestion that Detective Senior Sergeant Lindner had the relevant expertise. 28The Commissioner submitted that there was a denial of natural justice in Brown LCM refusing leave to recall the officer-in-charge and said that the material in the police brief could have been tendered had she been recalled. The material in the police brief was germane to the reason why the relevant police officer (Detective Senior Sergeant Lindner) was not satisfied that it was lawful for Dr Pecover to have possession of items 4 and 5 and, accordingly, why there was no obligation under s 218 of LEPRA for Detective Senior Sergeant Lindner to return the items to him. 29However, as the summary of the proceedings in the Local Court set out above indicates, the Magistrate accepted, because it was undisputed, that child abuse material had been found on items 4 and 5 and, accordingly, did not consider that any further evidence as to that matter ought be permitted to be adduced. 30The Commissioner has not identified any material in the police brief that would have been germane to the decision that the Magistrate had to make. The question for the Magistrate was whether an order ought be made under s 219, not whether the police officer was obliged to return the items under s 218. Although the Magistrate may have misapprehended the law (as to which see further below), I do not consider that the Magistrate's refusal to allow Detective Senior Sergeant Lindner to be recalled amounted to a denial of procedural fairness in these circumstances.

Ground (d): judicial notice of storage of data on computer systems 31The exchanges recorded in the transcript show that the Magistrate appeared to have more than a passing knowledge of computer systems and the storage of data. His Honour engaged Dr Pecover in a technical discussion, for which there was no foundation in the evidence. Facts in issue must be proved in court in accordance with the ordinary rules of evidence, which include s 144 of the Evidence Act. Proof is not required about knowledge that is both "not reasonably open to question" and is "common knowledge", subject to the requirements of s 144. Whether the Magistrate's statements about the workings of computers were reasonably open to question does not emerge. However, I do not consider that they could be regarded as amounting to "common knowledge". Furthermore, even if the information about computers was capable of fulfilling both of these requirements, the Magistrate failed to give the police prosecutor any opportunity of dealing with that information. It was simply sprung on the parties from the Bench without notice. There was a failure to comply with s 144(4). This in itself amounted to a denial of procedural fairness: Farkas v The Queen [2014] NSWCCA 141 at [16] per Basten JA, RA Hulme J agreeing. 32The Magistrate must be taken to have had regard to the workings of computers which were the subject of discussion with Dr Pecover in the course of the hearing. He was in error in so doing for the reasons set out above. The plaintiff has established an error of law. This ground has been made out.

Grounds (e) and (f): the construction of s 219 of LEPRA and the onus of proof 33The effect of s 218 is that the obligation of a police officer to return property that has been seized arises only if the police officer is satisfied that it is lawful for the person from whom it was seized to have possession of it. If the police officer is not so satisfied, then there is no obligation to return it unless an order for its return is made under s 219. An application under s 219 can be made by "any person". It follows that either the putative owner or the relevant police officer can apply for orders in relation to the property. Where there is no application by the putative owner, the police officer may apply for an order under s 219 so that the status of the property can be determined and either it can be returned, or forfeited to the Crown and thereafter destroyed or sold. 34Section 219 must be construed by reference to its purpose. As Johnson J said in Carolan v State of New South Wales [2013] NSWSC 1593 at [6]: It has been said that an application under s 219 LEPRA does not involve ordinary litigation, but has, as one of its objects, the protection of police who have in their possession property, with the provision designed to resolve a situation where the police entertain a doubt as to whether the person applying for the delivery of the property does in fact have lawful title to the property: Commissioner of Police v Bennett (McInerney J, Supreme Court of New South Wales, 17 October (1991) 9 Petty Sessions Review 4311 at 4314; Fantakis v Commissioner of Police [2013] NSWSC 685 at [44]. 35An order may be made to deliver the property to a person who appears to be lawfully entitled to it. If such a person is not ascertained then the Court determines what happens to the property. If there is someone who claims to be lawfully entitled to it, that person (or someone claiming through that person) has the onus of establishing lawful entitlement: Carolan at [7]. To determine who bears the onus by reference to the identity of who happens to be the applicant (the plaintiff in the Local Court), whether a police officer or the person claiming to be entitled to possession, would be irrational. Legislation ought be construed rationally and in accordance with its purpose. 36The approach taken by the Magistrate was revealed by the exchanges in the course of the hearing, including most obviously: "It's his property and they've got to give it back to him." The Magistrate asked why the police ought to be entitled to retain items 4 and 5 when the correct question was whether Dr Pecover had established to the civil standard that he was lawfully entitled to possession of these items. The Magistrate failed to apply s 219 and failed to address the correct question. The Magistrate has misdirected himself by defining the question of fact other than by reference to the correct law: Azzopardi, at 156 per Glass JA. 37The circumstance that the Magistrate applied the incorrect test might explain why the uncontroverted evidence of Senior Sergeant McCulloch that it was impossible to ensure that no illegal material was on the discs or to remove all illegal material did not lead to forfeiture orders being made in respect of items 4 and 5. However, it is not necessary to speculate about this matter since it is, for present purposes, sufficient to say that grounds (e) and (f) have been made out.

Ground (g): failure to give reasons 38The Magistrate, when determining Detective Senior Sergeant Lindner's application under s 219 of LEPRA, was exercising a judicial function. Accordingly his Honour was obliged to give reasons for his orders: Soulemezis v Dudley (Holdings) Pty Limited (1987) 10 NSWLR 247 at 278-281. More detailed reasons are required when there is a statutory right of appeal: Soulemezis at 280. 39Ground (g) has been made out. In the present case, his Honour did not give any reasons for the orders that he made. Although the exchanges between Bar and Bench can reasonably be expected to shed some light on his Honour's thinking, such exchanges are no substitute for reasons and may simply be regarded as a means of testing propositions, rather than amounting to reasons for a considered view arrived at on the basis of evidence and submissions. As Johnson J said in Director of Public Prosecutions (NSW) v Illawarra Cashmart Pty Limited [2006] NSWSC 343; 67 NSWLR 402 at [19]: It is not satisfactory that an appeal court is left to undertake an analysis of exchanges between the bench and counsel during submissions in an attempt to ascertain a magistrate's reasons for determination: R v Pham [2005] NSWCCA 94 at para 11; R v Thompson (2005) 156 A Crim R 467 at 474-5 (para 32).

The defendant's submissions 40To the extent to which Dr Pecover's submissions concern questions of law raised in the appeal, they have been dealt with above. In Dr Pecover's submissions in the proceedings before me, he has addressed various factual matters concerning the merits of the application in the Court below. It is not appropriate that I address these submissions since it is not for this Court to determine the merits of the application, which is to be remitted for hearing before the Local Court.

Relief 41The plaintiff has made out grounds (d), (e), (f) and (g). Detective Senior Sergeant Lindner did not have a hearing of her application under s 219 of LEPRA before the Magistrate in accordance with law. The Magistrate's decision cannot stand. It must be set aside and remitted to the Local Court. 42The Commissioner did not seek costs of the proceedings. Ms Adams SC, who appeared on behalf of the plaintiff, confirmed that the order sought was that each party pay his own costs of the proceedings. 43The plaintiff sought an order that, if the matter is remitted to the Local Court, it be heard by a magistrate other than Brown LCM. Dr Pecover opposed that order and submitted that Brown LCM ought be given the opportunity to hear the matter again. In all the circumstances, including the grounds of appeal that have been made out, I consider it to be in the interests of justice that the matter be heard by a different magistrate.

Orders 44I make the following orders: (1)An order pursuant to s 59(2)(a) of the Crimes (Appeal and Review) Act 2001 setting aside the order of the second defendant made on 18 February 2014 ordering the return of specified goods in Police custody to the first defendant within 60 days (the decision); (2)An order pursuant to s 59(2)(a) of the Crimes (Appeal and Review) Act 2001 remitting the decision to a Magistrate other than Magistrate Dr RA Brown to be dealt with according to law. (3)Order each party to pay his own costs.

Amendments 28 October 2014 - correct paragraph numbering Amended paragraphs: 44 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 28 October 2014