The Queen v Paul Vincent Hunt

• Jurisdiction: Northern Territory
• Court: Supreme Court
• Judge: Hiley J
• Judgment Date: 02 June 2014
• Neutral Citation: [2014] NTSC 19
• Docket Number: FILE NO: 21326215
• Date: 02 June 2014

[2014] NTSC 19

SUPREME COURT OF THE NORTHERN TERRITORY

IN THE SUPREME COURT OF THE NORTHERN TERRITORY OF AUSTRALIA AT DARWIN

Judgment of:

Hiley J

FILE NO: 21326215

Between:

The Queen

Respondent

and

Paul Vincent Hunt

Applicant

REPRESENTATION:

Counsel:

Applicant: J Pappas

Respondent: GR Rice QC

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 December 1966, 999 UNTS 171 (entered into force 23 March 1976)

Mutual Assistance in Criminal Matters Act 1987 (Cth)

Mutual Assistance in Criminal Matters Treaty, Australia – Indonesia, signed 27 October 1995 (entered into force 17 July 1999)

Police Administration Act 1978 (NT) s 143

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

REASONS FOR JUDGMENT

(Delivered 2 June 2014)

Introduction

1 The applicant has been charged with 12 offences of producing, and one offence of possessing, child pornography material outside Australia, contrary to s 273.5(1)(a) of the Criminal Code (Cth) and one offence of possessing child abuse material in the Northern Territory, contrary to s 125B of the Criminal Code 1983 (NT). The offences are alleged to have been committed at various times between about 28 March and 31 July 2012.

2 The material relating to the 13 offences alleged to have been committed outside Australia was found on an external hard drive which was identified during a search carried out by officers of the Australian Federal Police ( AFP) on the morning of 31 July 2012 at the residence in Jakarta, Indonesia, of the applicant and some of his family. 1 The material relating to the offence alleged to have been committed in the Northern Territory was found on a thumb drive which other members of the AFP received from the applicant after they approached him near his hire car that was parked on the Esplanade opposite the Mantra Hotel, Darwin, also on the morning of 31 July 2012. 2

3 In addition to the images found on the external hard drive located in the Jakarta residence, and those found on the thumb drive received in Darwin, the Crown also proposes to tender and rely on other evidence including admissions made by the applicant's wife (JH) 3 during the search at the residence, admissions made by the applicant (PH) during the enquiries on 31 July 2012, and evidence found on and investigations of the computer which the applicant had with him in Darwin at the time.

4 The applicant seeks orders pursuant to s 138(1) of the Evidence (National Uniform Legislation) Act 2011 (NT) ( the Act) that none of that material be admitted into evidence at the trial.

5 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

6 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

7 The principles established by the common law have now been enshrined in s 138 of the Act.

Sections 138 and 139

8 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.

139 Cautioning 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.’

9 The ‘fundamental concern’ of s 138 has been said to be:

‘…to ensure that, if the law has been breached, or some other impropriety has been involved in obtaining the evidence, this is balanced against the public interest in successfully prosecuting alleged offenders. The competing interests are obedience to the law in the gathering of evidence and the enforcement of the law in respect of offenders.’ 8

10 The reasoning process required by s 138 has been described by Simpson J in R v Dalley9 as follows:

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