Modern Day Witch Hunt ~ Over with, we Hope! ~
Ernest Bywater
Modern Day Witch Hunt
~ Over with, we Hope! ~
by Ernest Bywater
All rights reserved © 2016 and 2020
Below is a standard story legal disclaimer despite this book being about a real case and factual.
This is a work of fiction. All the characters and events portrayed in this book are fictional, and any resemblance to real people or incidents is purely coincidental. All rights are reserved by the author, including the right to reproduce this book or portions thereof in any form.
Product names, brands, and other trademarks referred to within this book are the property of their respective trademark holders. Unless otherwise specified there is no association between the author and any trademark holder is expressed or implied. Nor does it express any endorsement by them, or of them. Use of a term in this book should not be regarded as affecting the validity of any trademark, service mark, or registered trademark.
Cover Art
The cover image is Arresting a witch from the book A larger history of the United States of America, to the close of President Jackson's administration by T. W. Higginson. The image is in the public domain and is on file with Wikipedia. The trimming, manipulation, and adding of text is by Ernest Bywater. All rights to the cover image are reserved by the copyright owners.
3 March 2020 version
Published by Ernest Bywater
E-pub ISBN: 978-
__________________________________
Originally released in September 2016 as Modern Day Witch Hunt then updated due to events as they happened. This 3 March 2020 edition is heavily revised due to the end of all of the Court cases covering the criminal charges and civil case. This is the absolutely final version.
The titles in use are a Chapter, a Sub-chapter, and a section.
__________________________________
Images
Activities to 1 February 2020
Expenses to 1 February 2020
Coats
USB Devices
All of the images are also available in high definition at:
https://www.dropbox.com/sh/ebk8ve052m0c1rs/AACohN7e_x8OuRFrn0EbQ2L6a?dl=0
__________________________________
Foreword
This is written in the third person as it's a report of true events and information. I've tried very hard to keep my emotions out of this report on the events and this reporting style helps with doing that.
Some of the content is repeated as it's in chapters about the content and also in documents relating to the case. Also, now the cases are over some details that were previously withheld due to legal concerns relating to an ongoing case have now been included in this account.
__________________________________
Court Staff: The Magistrates and most of the Court Staff were all very courteous and professional in their interaction during this matter, and they dealt with the various cases as best and speedily as they could in light of their work load and the actions of the others involved in the case.
The only exception I make to that statement is the regular Registrar of the Court due to how that person granted the search warrant on such tenuous reasons and later refused to allow me to have copies of several important Court documents despite offers by me to pay for the copying.
__________________________________
Police Officers: The majority of the Police officers involved in the cases were professional and polite in their interactions during the course of this matter. However, the Police officer in charge of the case was very different in his behaviour, attitude, and handling of the matter. I don't know if the multitude of the Police delays were due to planned actions or incompetence or just plain lack of interest in dealing with the matters that caused the four and a half years of delays in having all of the matters resolved. Some of the reasons for the delays do tend toward malicious actions by the Police case officer and some of the senior station staff.
__________________________________
Legal Aid is not free, but is a loan because it's based on property and not a person's income. So owning a hovel means it all has to be repaid as against not owning any property means the government pays it all.
__________________________________
Summary
In July 2015 NSW Police executed a search warrant on the premises of Ernest Bywater for the purposes of finding evidence of a violation of the Commonwealth Crimes Act of the Use carriage service to access child pornography between 29 July 2011 to 5 February 2014. The Police collected and removed over one hundred computing and data storage devices, but they only assigned thirty-five exhibit numbers to the items collected.
Later Ernest was allowed to look at the reason for the request and issue of the search warrant, but he was not allowed to have a copy of it. The basis stated in the request to justify the issue of the search warrant was two comments posted to a website with a psychiatrist analysis based solely on those comments of: the person in the image having a nice smile, and a complaint about a person posting images of clothed people in the section reserved for nude images only, and a request for passwords to image sets
Nine months later Ernest was charged with several crimes under both the NSW Crimes Act and the Commonwealth Crimes Act. The charge of the use carriage service to access child pornography between 29 July 2011 to 5 February 2014 was withdrawn by the Crown Prosecutor as not worth the trouble when they got involved with the case in 2018.
The Police took no action on the case until October 2015 after Ernest lodged an application for the return of the materials seized. The Police did formal interviews with Ernest In November 2015, and later in April 2016. After the second interview they charged him with crimes related to the Possession of child abuse material under the NSW Crimes Act. These were the only interviews the Police conducted with Ernest.
Under the bail conditions placed on Ernest he was not allowed to go near any schools or recreation facilities or child care centres except to go directly to, and return from, appointments for medical matters, certain government mandated matters, and legal matters. This placed him under a virtual house arrest due to the locations of the schools in his rural town.
The first two times the matter went to Court Ernest applied for time to arrange for legal advice from the NSW Legal Service. The third time at Court he was represented by a solicitor and entered a plea of Not Guilty. The Police asked for time to better prepare their case as they needed to get witness statements from officers of the Australian Federal Police. The next time the matter was before the Court the NSW Police had gone from one charge to eight charges and they were still not ready.
In late 2016 the Police provided the Court a brief of evidence stating they had located one thousand five hundred child abuse files amongst the seven and a half million files on the seized items. The Police asked the Court that a copy of the evidence not be given to Ernest and Magistrate M approved the request. Ernest was allowed to view it with his solicitor.
When Ernest was able to briefly skim the report with his solicitor he saw the Police had listed files and directories he never heard of or saw before as well as listing files that were from Naturist magazines legally sold and bought in NSW due to having Commonwealth Government Censorship Classification. There were also a few files listed which were clearly False Positives in the software the Police used had hit on key words in documents about adults. The most obvious one being his father's book on his events in the Army during World War II as an adult.
Ernest's solicitor lodged a subpoena requesting the full directory tree information, file name, date of creation, and the date of last access for the files in the Police evidence report. This information was never provided.
Both the criminal and civil cases were in and out of Court many times with the civil case being put off by the Police as they didn't want to give anything back at all, regardless of its legal status. The criminal case was delayed due to the Police not meeting the subpoena, then arguing they couldn't provide the information, then arguing they didn't have to.
In July 2018 NSW Legal Aid notified Ernest they would no longer give him any legal assistance funding. Due to the two years of not being able to go out anywhere except to the small local grocery store, the chemist, the motor mechanic, and the fuel depot both Ernest and his son were very depressed and unwell due to the three years of stress. When faced with the need to personally handle the case and start it all over again as he would not have access to the solicitor's file Ernest knew he had to apply to the Court to subpoena copies of all of the current documents and lodge his own subpoena for the information already being sought. Ernest saw he would spend another three to five years fighting the Police in the Court just to get the information to prepare a defence properly. In despair and severely depressed, Ernest agreed to let the solicitor negotiate a change of plea and an agreed set of facts.
When advised of the change in plea NSW Legal Aid agreed to provide additional funding.
When the matter went before the Court again on 10 August 2018 the case was before a new magistrate who asked for a Pre-sentence Report after the charges were reduced to one of possession and the use of the carriage service.
In September 2018 the Police suddenly realised the carriage service charge should have been in the District Court for the last few years and not the Local Court as the carriage service charge was an Indictable Offence while the possession was not. Thus the charges got split and had to go before the two Courts. While this was happening the civil case was put off until after the criminal cases were finalised. The Local Court charge was set to be heard after the District Court charge was finalised as the Magistrate saw the District Court charge as having precedence.
Several times both of the cases were before the Court for a mention and Ernest did not have to go as long as his solicitor went. The District Court case kept being deferred due to the Crown Prosecutor not having everything they want from the Police. In late March 2019 the charge of the use of the carriage service was formally withdrawn and that matter was now finished with Ernest not having a case to answer for on the reason for the search warrant being issued in the first place.
The possession charge went back before the Local Court a few more times as material was provided and Court ordered reports prepared. On 29 May 2019 the Magistrate had ready some material about the gravity of the charge and the government wish for harsh sentences before he went through a long list of things to be taken into account in giving a sentence. Thus three years and one month after being charged Ernest was given a sentence to be of Good Behaviour for two years and placed on a special crimes register. This is four years and one month after the execution of the search warrant.
__________________________________
Property Return
During the course of the case some of the minor materials were slowly handed over whenever the Magistrate appeared to be angry about the delays the Police had in reviewing the material and returning it.
The return of property case had a number of hearings during 2019 after the criminal case was decided with a decision being handed down in mid December 2019. That's four and a half years after the property was seized. By this time the material still in Police possession were the main computer system and some other data storage devices.
In the course of the hearings in the later half of 2019 the Police finally admitted that they didn't check every file, but a selected sample of files. Despite early implying they fully checked each data storage device. The Police fought returning any files for any reason, despite not having checked. Their position was there may be some unlawful files among the ones they haven't checked and it's too much trouble for them to check them all. In the end the Magistrate accepted their argument and ordered the destruction of all the data storage devices without any files being copied and returned to Ernest. During this period Ernest tried to get some data from the Police to minimise the number of files to be checked to be returned, but both the Police and the Magistrate refused to provide the information to allow him to do that. In the end 30 years of financial, legal, business, work, and communications records were destroyed.
__________________________________
Magistrate's Reasoning for the Sentence
I ordered and paid for a copy of the Magistrate's reasoning on the sentence given with the intention of copying it here. However, I can't do that as, unlike the Border Mail, I respect copyright ownership and the transcript has a note about the Crown reserving the copyright and I can't reproduce it. Therefore, I will summarise the important parts in my own words below from some notes I took at the time and the transcript.
The charge is possessing child abuse material as per section 91H of the NSW Crimes Act which carries a ten year maximum gaol term. Then states the matter was referred to the District Court on a Commonwealth charge and that was not continued, leaving just the NSW charge.
The Magistrate explained the different Interpol categories types in assessing the material of the charge which are now used by the NSW Police and Courts. He states Ernest had pleaded guilty to possessing 1,500 images that fell within the charges before detailing the evidence the Police gave of noting images, videos, and text documents listing 218 items as Category 1 and 884 items as Category 2. He then states the range in both of the categories are very wide and since no examples were presented to the Court he has to assume they were at the low end of the range in both categories.
A case before the Court of Criminal Appeal in July 2010 noted 13 matters which could be used to assess the objective seriousness of offending material of this type was mentioned. Then the Magistrate listed them. Then he noted that there was no evidence supplied for several of the items listed for assessment, thus they don't apply to this case as there is no evidence to presented that Ernest was creating, nor disseminating, nor paying for, nor showing the images to anyone, nor was he part of a network. The Magistrate does note the number of materials was high.
The Magistrate quotes a case and a comment by the Attorney-General about the severity of these materials and the need to stop them. However, both of the quotes are from 2000 and relate to Child Pornography laws as they were then when actual sexual activity or torture were involved, which is prior to the September 2010 change of the law to include nudity and change the charge to Child Abuse Material instead of Child Porn.
The Magistrate spoke on the accused's good character being of less weight than usual due to the need to discourage such matters like this. He also mentioned the prospects of rehabilitation are good in this case and Ernest has no criminal record at all. Then he mentions a UK ruling where they support community rehabilitation orders may be relevant. He then mentions Ernest's mental and physical conditions which would make a custodial sentence onerous before mentioning Ernest's care for his son who has a mental condition requiring home support.
The last factors the Magistrate mentions is the length of the case and the stress, expense, and bail conditions of the time taken. He blames no one for the delays. He takes into account the positive pre-sentence report and acknowledges the seriousness of the offence before sentencing Ernest to two years good behaviour bond under the supervision by Community Corrections with the conditions of:
Not to access any pornography or naked images online or by other electronic means.
To accept Community Corrections supervision and direction with respect to online activity, and to report to the Community Corrections all mobile or internet enabled devices owned, used or accessed by him.
__________________________________
All of the Police officers in the Court seemed happy with the sentence except Senior Constable Kelly who was in charge of the case. Kelly was very angry that a custodial sentence was not given, and he left the Court in a hurry. He was obviously angry as he did so.
I would hate to try to calculate how many thousands of dollars or how many hundreds of hours of Police and Court staff time has been spent on this case.
It also appears there was no effort by the Police to ascertain how many of the images they examined were legal images due to having a censor classification, but the images still tripped their checking software.
__________________________________
One odd aspect of the Magistrate's sentence is when Ernest spoke with the Community Services Officer and the Police Crime Manager about what extent of the terms means he found they both had a different understanding of what the Magistrate meant to how Ernest understood what was said by the Magistrate. Yet when Ernest wrote to the Magistrate for a clarification from him on the conditions the Court Registrar said it was not the Magistrate's job to tell anyone what he meant in his decision.
This is kind of weird that a person can't expand on what they said. Ernest has wondered if the letter was ever shown to the Magistrate at all as he thinks it was intercepted and bounced by the Registrar.
__________________________________
Costs to Date
The Police officer in charge of the investigation has shown a total lack of concern for the lives of those affected by his actions, especially as to how his attitudes and actions affect Allyn who is an innocent party to the issue the Police have with Ernest. The deliberate ignoring of the priorities and not responding to communications from Ernest have resulted in a long series of mental health issues for Allyn during this period. Especially not being able to get on-line or use any of his subscriptions.
Soon after the Police left Ernest and Allyn went to work to get something working to give them Internet access, because that was how they did their banking and communicated with various government agencies they were legally required to maintain contact with. They managed to cobble together an older computer to give them enough Internet contact to get new passwords for some accounts, and to purchase some basic items. The priority was to get the bare minimum to give Allyn some stress relief. Later, around December 2015, it was decided they needed to buy more equipment because it looked like being many months or years before the Police would agree to return anything to them.
In getting Allyn's main computer working again it was found it didn't work properly, and it now had an intermittent fault. Although this was probably a result of the handling by the Police in The Raid it couldn't be proven to be so. Anyway, they decided to limp along with it for now. A few months later it ceased working at all, and a new system had to be bought to replace it. Also, a new system had to be purchased for Ernest.
Of the items returned two were computers with every internal cable unplugged, one had been in use prior to the seizure, and the other was ready to be turned on. Why the cables were unplugged is unknown. Of the four 4 TB drives removed from Allyn's computer three were OK but the fourth wasn't recognised by the system when plugged in. An examination with specialised software found all of the data to be corrupted, somehow. About five years' of back up data and thousands of dollars of software bought on-line were destroyed. That says a lot for how well the Police see to it the data isn't damaged in any way when they check it out.
The dollar figures in the following lists shown as images do not represent every expense related to the problems caused by the situation and lack of understanding or help by Senior Constable Kelly, but they are the ones Ernest and Allyn have definite information on. There are several hundred dollars worth of on-line game software subscriptions Allyn had to replace which were paid for via PayPal, and for which no invoices were issued. Nor do they cover the cost of the damage to the health of Allyn and Ernest this has caused.
Due to the stress placed on Allyn he had to attend a number of psych evaluations and has been seeing a psychiatrist since late 2019 on a regular basis. On the instructions of the Corrective Services staff Ernest has been seeing a psychiatrist on a monthly basis to begin with and is now on visits every five weeks. Both Allyn and Ernest see the same psychiatrist so they arrange their appointments to be on the same day to save on fuel costs when seeing the psychiatrist. Also, where possible required visits to the Corrective Services offices are made for those same days to save on the fuel costs and the hours of driving. While this is not always possible they do match up at times, so when they match up the cost of driving is attributed to only one of them.
Note: Ninety percent of the Court related costs are from Police delays.
All of the images are also available in high definition at:
https://www.dropbox.com/sh/ebk8ve052m0c1rs/AACohN7e_x8OuRFrn0EbQ2L6a?dl=0
__________________________________
List of activities to 1 February 2020
List of Expenses to 1 February 2020
The Court and Police costs shown are an estimate made by one of the solicitors in attendance at the Albury Court and are based on his past experience in such protracted cases. He did say this was a low end cost.
__________________________________
The Criminal Laws
The two laws involved in this case are the NSW Crimes Act and the Australian Criminal Act. However, it's really three laws because the NSW Crimes Act was heavily changed in late 2010.
These copies of the laws were downloaded in 2015 and cleaning up the formatting to use in this document was a lot of work. It's probable the laws have change a bit since then, but when last checked there were no significant changes obvious. Thus no effort was made to use a copy of the very current versions of the laws because it's too much work.
Before the change the law required torture or physical abuse or sexual activity with a child or any of those being observed by a child to be classified as child pornography. After the law was changed nudity or a girl being topless was now child abuse material. Also, the law allows the official to decide if the person is a child or looks like a child. From being a black and white qualitative law with a clear decision point anyone can make it became a quantitative law based solely on the judgement of the official making the decision.
Under this law a topless photo of a twenty year old woman with small breasts could be classed as being child abuse material. A fifteen year old can legally walk down the street in a see-through top, but if she allows a friend to take a photo of her the person with the photo has child abuse material and can be charged. There are child care products advertised on TV where the ads violate the law as it is now. However, the Police do nothing about them at all. Why? Is it because they have good legal staff?
NSW Crimes Act as of June 2015
In May 2008 a controversy over some photographs of a thirteen year-old girl taken by Bill Henson caused a major media stir. New South Wales Police raided the art gallery where the images were on display. Two weeks later they were returned after it was found they weren't in violation of the law and the Australian Classification Board gave them a PG (Parental Guidance for those under the age of 16) rating. A few months later the Australian Labor Party (ALP), the party in government in New South Wales at the time, organised a committee to review the laws on child pornography. At the time the relevant section of the New South Wales Crime Act read:
Section 91H - Production, dissemination or possession of child pornography
(1) Definitions
In this section:
child pornography means
material that depicts or describes, in a manner that would in all the
circumstances cause offence to reasonable persons, a person under (or
apparently under) the age of 16 years:
(a) engaged in sexual activity, or
(b) in a sexual context, or
(c) as the victim of torture, cruelty or physical abuse (whether or not in a sexual
context).
It was clear that plain nudity was legal regardless of the person's age, be it an image of some sort or in a story. Sexual context had to be present for it to be child pornography. Also, Section 91C defined a child as being anyone under eighteen years of age. Age of Consent, then, was sixteen years of age. Note the later change of the name of the offence from child pornography to child abuse material to show it covers more than porn.
__________________________________
NSW Crimes Act 1900 as of October 2015
In January 2010 the committee reported back to the NSW Parliament, an ALP government lead by Kristina Keneally, with a lot of media attention at the time. In June the legislation still read the same as above.
On 17 September 2010 the ALP government in charge changed the legislation, but they did not issue a media release on the change of the law that Ernest could find. The general public didn't know of the law change, despite some very significant changes to the legislation to read:
Section 91FB - Child abuse material—meaning
(1) In this Division:
child abuse material means
material that depicts or describes, in a way that reasonable persons
would regard as being, in all the circumstances, offensive:
(a) a person who is, appears to be or is
implied to be, a child as a victim of torture, cruelty or physical abuse, or
(b) a person who is, appears to be or is
implied to be, a child engaged in or apparently engaged in a sexual
pose or sexual activity (whether or not in the presence of other persons), or
(c) a person who is, appears to be or is
implied to be, a child in the presence of another person who is
engaged or apparently engaged in a sexual pose or sexual activity, or
(d) the private parts of a person who is,
appears to be or is implied to be, a child.
(2) The matters to be taken into account
in deciding whether reasonable persons would regard particular
material as being, in all the circumstances, offensive, include:
(a) the standards of morality, decency
and propriety generally accepted by reasonable adults, and
(b) the literary, artistic or educational merit (if any) of the material, and
(c) the journalistic merit (if any) of
the material, being the merit of the material as a record or report
of a matter of public interest, and
(d) the general character of the material
(including whether it is of a medical, legal or scientific character).
(3) Material that depicts a person or the private parts of a person includes material that depicts a representation of a person or the private parts of a person (including material that has been altered or manipulated to make a person appear to be a child or to otherwise create a depiction referred to in subsection (1)).
(4) The private parts of a
person are:
(a) a person’s genital area or anal area, or
(b) the breasts of a female person.
No sexual context is needed under this new law, and there is no grace period to comply. Works and images that were legal on 16 September were suddenly unlawful on 17 September. A child was still defined as being anyone under eighteen years of age. But it is now sixteen years of age in the law. For decades the legal age of consent for sexual activity has been sixteen years of age for both genders.
__________________________________
Major Issues with the Law Itself
There are some major issues with the law itself, as it is written.
1. It is not descriptive of what does or does not constitute 'a person who appears to be a child.'
2. It applies to written works or images of a person who appears to be a child, with nothing on how to identify a child.
__________________________________
Concerns with the New NSW Law
Two serious concerns with the new NSW law are the way they can mix levels of activities so minor issues are seen as major issues and how they make legal activities unlawful. Examples of this are:
1. The original law required the involvement of sexual activity or torture or a very blatant sexual pose for it to be child porn. Simple nudity or non-sexual activity were legal images, as were topless or see through images. However, the new law is such that a visible breast or simple nudity is now child abuse material by the courts.
Thus, an image of a fifteen year-old girl walking down the street in a see through top is now seen as the same as an image of someone having sex with a six year-old girl.
2. It is legal for the fifteen year-old girl in the see through top to walk down the street. It is legal for her to take a photo of herself like that with her breasts displayed. It is also legal for her to have a copy of the photo. It is legal for her to send that photo to other people. However, if the person who receives the photo doesn't immediately delete it they can be charged with having child abuse material and be sentenced the same as some as someone having a photo of a person having sex with a toddler.
__________________________________
It's also possible for a person under sixteen years of age to legally wander around various places topless or in a see through top, but taking a photograph of them is a crime. Or they may be over sixteen years of age but are deemed by someone in authority as to be looking under eighteen years of age. Also, a photograph of a topless boy under ten years of age could be said to look like a photograph of a topless girl of the same age, and thus a crime.
Photographs of nude people are no longer legal, unless it's obvious they're over sixteen years of age, as seen in the eyes of the person in authority making the decision. The definition of what constitutes 'appears to be a child' is totally subjective and not objective. Good laws are objective and have very clear and obvious markers, like the drunk driving and speed laws. If someone chooses to use a buxom sixteen year old like Samantha Fox as their standard, then even photos of a twenty year old Twiggy in a flimsy top would get people arrested.
The traditional photos of new born babes taken with them wearing only a diaper is now child pornography, according to this law.
__________________________________
The way the law is written it is applicable in a retrospective manner because anyone with images from prior to the change that were legal can now be charged under the law. It doesn't include a 'grandfather clause' to exempt anything held from prior to the change in the legislation. Yet laws aren't supposed to be legal to have a retrospective application. They should include an exemption date or a reasonable period of grace to allow for people to comply after they're made aware of the changes.
__________________________________
In Ernest's searches of the newspapers and NSW government websites he did not find any references to the changes of these laws between August 2010 and December 2010, when it would be expected a media announcement would be made about the impending changes or the just made changes to the law.
__________________________________
At one point during his enquiries into the reason for the law change a claim made by a few people within the Police and legal system was the current law is more in line with the Christian mores. However, if anyone bothers to take the time to read the Christian Bible they will find in Genesis that God approved of nudity and the concept of nudity being wrong was given to Adam and Eve by the Serpent. Thus that is a Satanic concept and doctrine and not a Christian one.
__________________________________
Another Concern
Also, it appears the Police take no action to check if any images are lawful once their examination identifies as being of interest under this law are actually lawful under section 91HA (7) with a Commonwealth Censor Classification and are thus legal to have.
__________________________________
Legal Defences in October 2015
Part of the law the detectives investigating Ernest's case seem to have totally ignored is the section 91 HA of the NSW Crimes Act.
91HA Defences
(1) Innocent production, dissemination or possession
It is a defence in
proceedings for an offence against section 91H that the defendant did
not know, and could not reasonably be expected to have known, that he
or she produced, disseminated or possessed (as the case requires) child abuse material.
(2) It is a defence in proceedings for an offence against section 91H not involving the
production or dissemination of child abuse material that the material
concerned came into the defendant’s possession unsolicited and the
defendant, as soon as he or she became aware of its nature, took
reasonable steps to get rid of it.
(7) Classified material
It is a defence in proceedings for an offence against section 91H that
the material concerned was classified (whether before or after the
commission of the alleged offence) under the Classification
(Publications, Films and Computer Games) Act 1995
of the Commonwealth, other than as refused classification (RC).
On a number of occasions Ernest told the Police, in interviews and discussions, he had many images from books and magazines sold with a Commonwealth Government Censorship Classification, and he also had a huge collection of images he hadn't yet examined. He also said he had always operated according to the law as it was known to him when he last checked it in June 2010. The Police had no interest in any of this information, nor did they ever act on it beyond claiming he knowingly had child abuse material
__________________________________
Criminal Code Act 1995 (Australia)
as of October 2015
What is most intriguing about the Commonwealth law on child porn is the way it's part of a section of law about the protection of national infrastructure. Thus they see child porn is not an offence against people, but an offence against the telecommunications infrastructure in the same way the section is about the laws to deal with people blowing up bridges.
Chapter 10 - National infrastructure
Part 10.6 - Telecommunications Services
Division 474 - Telecommunications offences
Subdivision D - Offences relating to use of carriage service for child pornography material or child abuse material
474.19 Using a carriage service for child pornography material
(1) A person is guilty of an offence if:
(a) the person:
(i) accesses material; or
(ii) causes material to be transmitted to himself or herself; or
(iii) transmits, makes available, publishes, distributes, advertises or promotes material; or
(iv) solicits material; and
(aa) the person does so using a carriage service; and
b) the material is child pornography material.
Penalty: Imprisonment for 15 years.
(2) To avoid doubt, the following are the
fault elements for the physical elements of an offence against subsection (1):
(a) intention is the fault element for the conduct referred to in paragraph (1)(a);
(b) recklessness is the fault element for the circumstances referred to in paragraph (1)(b).
Note: For the meaning of intention and recklessness see sections 5.2 and 5.4.
(2A) Absolute liability applies to paragraph (1)(aa).
Note: For absolute liability, see section 6.2.
(3) As well as the general defences provided for in Part 2.3, defences are provided for under section 474.21 in relation to this section.
474.20 Possessing, controlling, producing, supplying or obtaining child pornography material for use through a carriage service
(1) A person is guilty of an offence if:
(a) the person:
(i) has possession or control of material; or
(ii) produces, supplies or obtains material; and
(b) the material is child pornography material; and
(c) the person has that possession or control, or engages in that production, supply or
obtaining, with the intention that the material be used:
(i) by that person; or
(ii) by another person;
in committing an offence against section
474.19 (using a carriage service for child pornography material).
Penalty: Imprisonment for 15 years.
(2) A person may be found guilty of an offence against subsection (1) even if committing the offence against section 474.19 (using a carriage service for child pornography material) is impossible.
(3) It is not an offence to attempt to commit an offence against subsection (1).
474.21 Defences in respect of child pornography material
(1) A person is not criminally
responsible for an offence against section 474.19 (using a carriage
service for child pornography material) or 474.20 (possessing etc.
child pornography material for use through a carriage service)
because of engaging in particular conduct if the conduct:
(a) is of public benefit; and
(b) does not extend beyond what is of public benefit.
In determining whether the person is, under this subsection, not criminally responsible for the offence, the question whether the conduct is of public benefit is a question of fact and the person’s motives in engaging in the conduct are irrelevant.
Note: A defendant bears an evidential burden in relation to the matter in this subsection, see subsection 13.3(3).
(2) For the purposes of subsection (1),
conduct is of public benefit if, and only if, the conduct is necessary for or of assistance in:
(a) enforcing a law of the Commonwealth, a State or a Territory; or
(b) monitoring compliance with, or investigating a contravention of, a law of the Commonwealth, a State or a Territory; or
(c) the administration of justice; or
(d) conducting scientific, medical or
educational research that has been approved by the Minister in
writing for the purposes of this section.
(3) A person is not criminally responsible for an offence against section 474.19 (using a carriage
service for child pornography material) or 474.20 (possessing etc.
child pornography material for use through a carriage service) if:
(a) the person is, at the time of the offence, a law enforcement officer, or an intelligence or security
officer, acting in the course of his or her duties; and
(b) the conduct of the person is
reasonable in the circumstances for the purpose of performing that duty.
Note: A defendant bears an evidential burden in relation to the matter in this subsection, see subsection 13.3(3).
(4) A person is not criminally
responsible for an offence against section 474.19 (using a carriage
service for child pornography material) or 474.20 (possessing etc.
child pornography material for use through a carriage service) if the
person engages in the conduct in good faith for the sole purpose of:
(a) assisting the Children’s e-Safety Commissioner to detect:
(i) prohibited content (within the meaning of Schedule 7
to the Broadcasting Services Act 1992); or
(ii) potential prohibited content (within the meaning of that Schedule);
in the performance of the Commissioner’s functions under Schedule 5 or Schedule 7 to that Act; or
(b) manufacturing or developing, or updating, content filtering technology (including software) in
accordance with:
(i) a recognised alternative access-prevention arrangement (within the meaning of clause
40 of Schedule 5 to the Broadcasting Services Act 1992); or
(ii) a designated alternative access-prevention arrangement (within the meaning of clause 60 of
that Schedule).
Note: A defendant bears an evidential burden in relation to the matter in this subsection, see subsection 13.3(3).
474.22 Using a carriage service for child abuse material
(1) A person is guilty of an offence if:
(a) the person:
(i) accesses material; or
(ii) causes material to be transmitted to himself or herself; or
(iii) transmits, makes available, publishes, distributes, advertises or promotes material; or
(iv) solicits material; and
(aa) the person does so using a carriage service; and
(b) the material is child abuse material.
Penalty: Imprisonment for 15 years.
(2) To avoid doubt, the following are the
fault elements for the physical elements of an offence against subsection (1):
a) intention is the fault element for the conduct referred to in paragraph (1)(a);
(b) recklessness is the fault element for the circumstances referred to in paragraph (1)(b).
Note: For the meaning of intention and recklessness see sections 5.2 and 5.4.
(2A) Absolute liability applies to paragraph (1)(aa).
Note: For absolute liability, see section 6.2.
(3) As well as the general defences provided for in Part .3, defences are provided for under section 474.24 in relation to this section.
474.23 Possessing, controlling, producing, supplying or obtaining child abuse material for use through a carriage service
(1) A person is guilty of an offence if:
(a) the person:
(i) has possession or control of material; or
(ii) produces, supplies or obtains material; and
(b) the material is child abuse material; and
(c) the person has that possession or control, or engages in that production, supply or obtaining, with the
intention that the material be used:
(i) by that person; or
(ii) by another person;
in committing an offence against section 474.22 (using a carriage service for child abuse material).
Penalty: Imprisonment for 15 years.
(2) A person may be found guilty of an offence against subsection (1) even if committing the offence against section 474.22 (using a carriage service for child abuse material) is impossible.
(3) It is not an offence to attempt to commit an offence against subsection (1).
474.24 Defences in respect of child abuse material
(1) A person is not criminally responsible for an offence against section 474.22 (using a carriage
service for child abuse material) or 474.23 (possessing etc. child
abuse material for use through a carriage service) because of
engaging in particular conduct if the conduct:
(a) is of public benefit; and
(b) does not extend beyond what is of public benefit.
In determining whether the person is, under this subsection, not criminally responsible for the offence,
the question whether the conduct is of public benefit is a question
of fact and the person’s motives in engaging in the conduct are irrelevant.
Note: A defendant bears an evidential burden in relation to the matter in this subsection, see subsection 13.3(3).
(2) For the purposes of subsection (1),
conduct is of public benefit if, and only if, the conduct is
necessary for or of assistance in:
(a) enforcing a law of the Commonwealth, a State or a Territory; or
(b) monitoring compliance with, or
investigating a contravention of, a law of the Commonwealth, a State or a Territory; or
(c) the administration of justice; or
(d) conducting scientific, medical or educational research that has been approved by the Minister in
writing for the purposes of this section.
(3) A person is not criminally responsible for an offence against section 474.22 (using a carriage
service for child abuse material) or 474.23 (possessing etc. child
abuse material for use through a carriage service) if:
(a) the person is, at the time of the offence, a law enforcement officer, or an intelligence or security
officer, acting in the course of his or her duties; and
(b) the conduct of the person is
reasonable in the circumstances for the purpose of performing that duty.
Note: A defendant bears an evidential burden in relation to the matter in this subsection, see subsection 13.3(3).
(4) A person is not criminally
responsible for an offence against section 474.22 (using a carriage
service for child abuse material) or 474.23 (possessing etc. child
abuse material for use through a carriage service) if the person
engages in the conduct in good faith for the sole purpose of:
(a) assisting the Children’s e-Safety Commissioner to detect:
(i) prohibited content (within the meaning of Schedule 7
to the Broadcasting Services Act 1992); or
(ii) potential prohibited content (within the meaning of that Schedule);
in the performance of the Commissioner’s
functions under Schedule 5 or Schedule 7 to that Act; or
(b) manufacturing or developing, or updating, content filtering technology (including software) in accordance with:
(i) a recognised alternative access-prevention arrangement (within the meaning of clause 40 of Schedule 5 to the Broadcasting Services Act 1992); or
(ii) a designated alternative access-prevention arrangement (within the meaning of clause 60 of that Schedule).
Note: A defendant bears an evidential burden in relation to the matter in this subsection, see subsection 13.3(3).
__________________________________
Back in 2015 when Ernest ran Internet searches on the keywords of child porn + Australia + law and then on child abuse + Australia + law all he found was the various state laws. Yet when Ernest ran a search on 474 + Australia + law he found the law as shown in this sub-chapter. The section number 474 was known from the search warrant as that was the law it was issued to look for evidence of violating.
__________________________________
Note: The charge against Ernest under this act was later withdrawn by the Crown Prosecutor. This was the most serious of the charges.
__________________________________
The Civil Case Laws
The laws relevant to the criminal case also have an application to the civil case on the return of the property. However, there are a few other laws that have a relevance to the civil case as well. The laws are:
Criminal Code Act 1995 (Australia)
NSW Crimes Act 1900
NSW Law Enforcement (Powers and Responsibilities) Act 2002
Commonwealth Copyright Act 1968
There are other laws that have a minor application in this case that deal with the storage of financial, business, and accounting records as well as copyright authorities. I won't detail these other laws as they're mostly secondary to the four laws above.
The sections of the Crimes Acts that apply to the civil case are applied in either a different manner or are different sections. Thus the relevant sections are repeated in this chapter to make them easier to relate to the activities in this chapter.
Some of the information in the laws will be duplicated in the various documents on the case as well as here.
__________________________________
Criminal Code Act 1995 (Australia)
as of September 2019
Dictionary
data includes:
(a) information in any form; or
(b) any program (or part of a program).
data held in a computer includes:
(a) data held in any removable data storage device for the time being held in a computer; or
(b) data held in a data storage device on a computer network of which the computer forms a part.
data storage device means a thing (for example, a disk or file server) containing, or designed to contain, data for use by a computer.
__________________________________
This part of the law is listed to show the Commonwealth laws regard the file content as being an item of property separate to the storage media on which it is stored. This is a key point in Ernest's argument for the return of the files with lawful content.
__________________________________
NSW Crimes Act 1900
as of October 2019
This part of the law is listed to show the NSW laws regard the file content as being an item of property separate to the storage media on which it is stored. The same as with the Commonwealth laws.
__________________________________
4. Definitions
(1) In this Act, unless the context or subject-matter otherwise indicates or requires -
Property includes every description of real and personal property; money, valuable securities, debts, and legacies; and all deeds and instruments relating to, or evidencing the title or right to any property, or giving a right to recover or receive any money or goods; and includes not only property originally in the possession or under the control of any person, but also any property into or for which the same may have been converted or exchanged, and everything acquired by such conversion or exchange, whether immediately or otherwise.
91FA. Definitions
data includes -
(a) information in any form, or
(b) any program (or part of a program).
91FB. Child abuse material - meaning
(1) In this Division -
child abuse material means material that depicts or describes, in a way that reasonable persons would regard as being, in all the circumstances, offensive -
308. General definitions
In this Part -
data includes -
(a) information in any form, or
(b) any program (or part of a program).
data held in a computer includes -
(a) data entered or copied into the computer, or
(b) data held in any removable data storage device for the time being in the computer, or
(c) data held in a data storage device on a computer network of which the computer forms part.
data storage device means any thing (for example a disk or file server) containing or designed to contain data for use by a computer.
__________________________________
Note how the above law differentiates between the storage media and the work content to identify the content of the work as the main concern.
__________________________________
NSW Law Enforcement (Powers and Responsibilities) Act 2002
as of 1 November 2019
This is the NSW law to govern how the Police handle the materials that end up in their custody.
217. Right to inspect seized documents
Unless a Magistrate otherwise orders, a
police officer who, in exercising a function conferred by or under
this Act, seizes a document must allow a person who would be entitled to the document -
(a) to inspect it at any reasonable times and from time to time, and
(b) to take extracts from or make copies of it.
218. Return of seized things
(1) A police officer who, in
exercising a function conferred by or under this Act, seizes a thing
or has custody of other property to which this Division applies must
return the thing to the owner or person who had lawful possession of
the thing before it was seized or came into custody if the officer is satisfied that -
(a) its retention as evidence is not required, and
(b) it is lawful for the person to have possession of the thing.
(2) This section is subject to any order made under section 219.
__________________________________
These sections of this law, especially S 218, Ernest relied heavily on to provide legal responsibility to have the file contents of lawful files returned to him.
__________________________________
Commonwealth Copyright Act 1968
as of September 2019
Part II - Interpretation
10. Interpretation
computer program means a set of statements or instructions to be used directly or indirectly in a computer in order to bring about a certain result.
artistic work means:
(a) a painting, sculpture, drawing,
engraving or photograph, whether the work is of artistic quality or not;
(b) a building or a model of a
building, whether the building or model is of artistic quality or not; or
(c) a work of artistic craftsmanship whether or not mentioned in paragraph (a) or (b);
but does not include a circuit layout
within the meaning of the Circuit Layouts Act 1989.
computer program means a set of statements or instructions to be used directly or indirectly in a computer in order to bring about a certain result.
copy:
(a) of a work - means a reproduction; or
(b) of a sound recording - means a record embodying the sound recording, or a substantial part of the
sound recording, derived directly or indirectly from a record
produced on the making of the sound recording; or
(c) of a cinematograph film - means
any article or thing in which the visual images or sounds comprising the film are embodied; or
(d) of a broadcast - includes:
- (i) a record embodying a sound recording of the whole or a part of the broadcast; or
- (ii) a copy of a cinematograph film of the whole or a part of the broadcast.
electronic literary or music item means:
(a) a book in electronic form; or
(b) a periodical publication in electronic form; or
(c) sheet music in electronic form;
regardless of whether there is a printed form.
licensed copying or communicating has the meaning given by subsection 113Q(2).
manuscript, in relation to a literary, dramatic or musical work, means the document embodying the work as initially prepared by the author, whether the document is in hardcopy form, electronic form or any other form.
private and domestic use means private and domestic use on or off domestic premises.
work means a literary, dramatic, musical or artistic work.
writing means a mode of representing or reproducing words, figures or symbols in a visible form, and written has a corresponding meaning.
Part III - Copyright in original literary, dramatic, musical and artistic works
Division 1 - Nature, duration and ownership of copyright in works
31. Nature of copyright in original works
(1) For the purposes of this Act,
unless the contrary intention appears, copyright, in relation to a
work, is the exclusive right:
(a) in the case of a literary,
dramatic or musical work, to do all or any of the following acts:
- (i) to reproduce the work in a material form;
- (ii) to publish the work;
- (iii) to perform the work in public;
- (iv) to communicate the work to the public;
- (vi) to make an adaptation of the work;
- (vii) to do, in relation to a work that is an adaptation of the first-mentioned work, any of the acts
specified in relation to the first-mentioned work in subparagraphs (i) to (iv), inclusive; and
(b) in the case of an artistic work, to do all or any of the following acts:
- (i) to reproduce the work in a material form;
- (ii) to publish the work;
- (iii) to communicate the work to the public; and
(c) in the case of a literary work (other than a computer program) or a musical or dramatic work, to
enter into a commercial rental arrangement in respect of the work reproduced in a sound recording; and
(d) in the case of a computer program, to enter into a commercial rental arrangement in respect of
the program.
__________________________________
The NSW Copyright laws are almost a copy of the Commonwealth laws and not worth listing them separately as the Commonwealth Act supersedes the NSW law.
__________________________________
Note how the copyright law differentiates between the storage media and the work content to provide the protection on the content of the work as the main concern.
__________________________________
The Raid
Early in a mid-week afternoon in late July 2015 Ernest was seated at his computer when there was a loud banging on his front door. When he opened the door he was confronted by a group of several Police officers. One in plain clothes flashed an ID and half mumbled his name. The cop's voice was much clearer when he got to the part about exercising a search warrant on the premises. The warrant authorised them to take:
- Personal or laptop computers,
- Peripheral devices,
- Mobile telephones, SIM cards, computer
hard drives and equipment, faxes or any other electronic storage medium,
- Digital Versatile Discs (DVDs), film,
film negative, floppy discs, Compact Discs (CDs), magazines, books,
thumb drives, USB drives, flash cards, memory cards, memory sticks
and any related container pertaining to these items,
- Video and still cameras, whether film or digital and accessories; and video tapes.
They're seeking material relating to: