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Modern Day Witch Hunt ~ Over with, we Hope! ~

Ernest Bywater

Cover

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: 978-1-67818-998-3

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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.

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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

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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.

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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.

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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.

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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.

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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.

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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.

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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.

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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.

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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.

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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

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List of activities to 1 February 2020

activities

List of Expenses to 1 February 2020