Gibbons v Evans & Anor [2008] NSWSC 495

New South Wales Supreme Court

CITATION : Gibbons v Evans & Anor [2008] NSWSC 495

HEARING DATE(S) : 14 May 2008 JURISDICTION : Common Law

JUDGMENT OF : Adams J at 1

EX TEMPORE JUDGMENT DATE : 14 May 2008

DECISION : Summons dismissed. Plaintiff to pay the second defendant's costs.

CATCHWORDS : Search warrant - innocent but careless - mistake in alleged facts - warrant would still have been issued - warrant valid.

LEGISLATION CITED : Crimes Act 1900 s 91H(3)

CATEGORY : Principal judgment

CASES CITED : Connell v Miller & Ors (unreported, NSWSC, Latham J, 12 February 2007 Vincent v Randall [1999] NSWSC 833

Christopher GIBBONS (Plaintiff) PARTIES : Rory EVANS (First defendant) Detective Senior Constable Patricia JONES (Second defendant)

FILE NUMBER(S) : SC 2007/10515

Mr R Johnson (Plaintiff) COUNSEL : Mr L Babb SC with Ms A Mitchelmore (Second defendant) (No appearance for first defendant)

SOLICITORS : Edwards Legal Service (Plaintiff) I V Knight (First and second defendants)

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

ADAMS J

Wednesday, 14 May 2008

10515/07 – Christopher GIBBONS v Rory EVANS & Anor

JUDGMENT

1 HIS HONOUR: On 20 June 2005 Detective Senior Constable Jones was on duty at Blacktown Police Station and applied for a search warrant following an interview that she had conducted on that day with a Ms Rosemaree Rich. The relevant offence specified in the application was that of possessing child pornography contrary to s 91H(3) of the Crimes Act 1900. 2 Ms Rich told Senior Constable Jones that she had discovered on the plaintiff's computer a link to a child pornography website which, when accessed, showed images plainly falling within the definition of child pornography in s 91H(1). The link was identified by her when she went to the history saved by Windows Explorer. Ms Rich's statement, which is an extensive one, is susceptible of some ambiguity, in that on one reading it might have been taken to suggest that Ms Rich had seen, or believed she had seen, images already saved on the computer as distinct from images which were displayed by accessing the link. 3 I think that any careful reading of the statement would have led inevitably to the conclusion that Ms Rich had not in fact accessed images stored on the computer but had seen the images on the website, which she believed for good reasons had been earlier accessed by the plaintiff. 4 Ms Rich also told the officer that, immediately before the plaintiff had loaned the computer to her, he had deleted a number of files in circumstances that raised her suspicions about the nature of the files, though she did not for one moment think that they might have been files containing images of child pornography. When she later confronted the plaintiff, she asked about the files being deleted and he answered, in substance, that they contained adult pornography. She then said to him that she saw the images of the young girls and the plaintiff responded that he was curious and had only accessed the site once. 5 I think there were reasonable grounds for believing that the files deleted may possibly (though not, I think, probably) have been connected with the commission of an offence under s 91H and that the deletion may have been ineffectual. In short, I think that there were grounds for reasonable suspicion that the deleted files contained child pornographic images but not for a belief that this was so. 6 The officer gave evidence that she understood Ms Rich's information to be that she had accessed images that had been saved on computer and that the possibility that Ms Rich had simply seen the images on a link earlier accessed by the plaintiff did not occur to her. I accept the officer's evidence as truthful but I think her interpretation of the statement which she had taken from Ms Rich was not only wrong but careless. I think that any reasonably careful consideration of that statement must have led to the conclusion that Ms Rich had not in fact accessed saved images but had seen images on a link which had been saved and which she inferred, rightly in the light of the plaintiff's admission, had been accessed by the plaintiff. 7 The intentional accessing of a website containing images of child pornography is, to my mind, possession of child pornography within the meaning of s 91H(3) if they happen to be displayed, although it might be fleeting. The statement by the plaintiff that he had indeed accessed the site out of curiosity implies I think an intentional accessing of the site which contained the images described by Ms Rich. 8 In the application to the Registrar for the warrant, Detective Senior Constable Jones stated – "In the evening hours of Sunday 19 June 2005, the informant Ms Rosemaree RICH (30.03.72) who is the de facto partner of the accused, Christopher GIBBONS sought his permission to use his computer to access the internet. Prior to allowing RICH access to the Del brand computer, the accused deleted approximately 4,567 files. On 20 June 2005, Investigators received a telephone call from RICH stating that earlier this date (20.06.05) she had accessed GIBBONS Del brand computer with his permission and discovered approximately ten images of female children aged between 10 and 12 years old depicted naked in files saved on the computer. The computer can only be accessed by a password which is known only by the complainant. A statement was obtained from the complainant RICH to this effect. Investigators are seeking this warrant to seize the said computers and have the same analysed ..." It follows from what I have already said that the allegation that Ms Rich had said to police that she had discovered child pornographic images "in files saved on the computer" was wrong though I do not doubt that it is what Detective Senior Constable Jones believed Ms Rich had said. 9 In my view, had the Registrar been told in effect that the plaintiff had intentionally accessed a site containing child pornography (which I think is the effect of Ms Rich's statement) that would have provided sufficient grounds for the issue of the search warrant and it would have been issued. I am satisfied there was no wilful or intentional misleading of the Registrar, although the belief of the officer had been carelessly arrived at. I think that the officer was unconscious of the carelessness. I do not think she was deliberately negligent or indifferent to her duty. She simply did not appreciate that there was a distinction between accessing a link on the one hand and accessing images saved on the computer on the other, a distinction which it is also apparent Ms Rich did not appreciate, as is evident from several passages in her statement. 10 In these circumstances it is clear that there is no basis for quashing the warrant: see Vincent v Randall [1999] NSWSC 833 and Connell v Miller & Ors (unreported, NSWSC, Latham J, 12 February 2007). 11 It follows that the summons must be dismissed. The plaintiff is to pay the second defendant's costs. **********