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DISCLOSURE OF COPY SEIZED COMPUTER MATERIALS RE CHARGES PURSUANT TO THE CLASSIFICATION OF COMPUTER GAMES AND IMAGES ACT 1995

THE CHARGE

Section 26(3) of the Act creates the offence of being knowingly in possession of a child abuse computer game. The maximum penalty is a fine in the sum of $18,750.00 or 2 years imprisonment.

Schedule 2 of the Act defines a child abuse computer game to include digital images which depict a person who is, or appears to be, under the age of 16 years, in a way likely to cause offence to a reasonable adult.

POSSESSION AND THE NEED FOR FORENSIC EXAMINATIONS

It is trite to say that the material issue in such prosecutions is inevitably one of possession. The Act defines the term “possession” in accordance with its accepted meaning at common law. Proof of custody or control of the computer game and/or an ability or right to obtain such custody or control is the central issue. Evidence material to the question of how and in what circumstances the offensive images came to be on the computer is of critical importance.

The allegedly offensive data is normally said to be located on the internal hard drive of the seized computer. With the advent of the internet and advances in computer technology, there is now a variety of methods by which such information can come to be present.

Evidential matters as fundamental as the manner, times and dates on which the images were downloaded and saved to the hard disc cannot be verified without examination of a duplicate of the raw data seized by police. Much of that data is highly technical in nature. Accordingly, there will often be a need for the defence to engage an expert to conduct an independent forensic examination of the copy seized computer material in order that the accused be in a position to properly defend themselves.

RECENT EXPERIENCE IN OBTAINING DISCLOSURE

We have recently acted in a number of matters where disclosure of a duplicate copy1 of seized computer material has been sought from the Queensland Police Service2, pre-committal. The purpose of seeking disclosure is to enable forensic examination of the data by a defence computer expert.

We attempted to obtain disclosure by way of correspondence with police at first instance. We proposed that the QPS release the material in consideration of a suitable solicitor’s undertaking. At an early stage it became apparent that the Service had formed a view (on the basis of advice from the QPS solicitor) that such disclosure was, firstly, contrary to the public interest and, secondly, constituted an offence pursuant to the Act.

The police were only willing to offer a supervised viewing of the computer at Police Headquarters. That offer was taken up by the defence. However, our expert advice was that to perform a proper forensic analysis a duplicate copy was required to examine over time at their laboratory with appropriate software tools.

Negotiations with the Director of Public Prosecutions were entered into. The Director refused to direct the police to produce the evidence sought.

Given the intractable position of the QPS and the DPP, the defence was forced to subpoena the seized computer material to a special mention. That process occurred prior to the amendments to the Justices Act introducing a procedure for Directions Hearings in the Magistrates Court.

An application for an order for production was made on the return date. The QPS objected to the subpoena on the abovementioned grounds3. A limited claim of public interest immunity was made in relation to the former. The basis of the public interest concerns were said to be the hypothetical risk that disclosure of the copy seized computer material to the defence and its experts may result in unlawful dissemination of the child abuse images back into the market place.

We argued against the misconceived position that disclosure constituted an offence pursuant to the Act. It was pointed out that none of the offence provisions cited by the QPS could conceivably be construed as having the purpose of prohibiting disclosure of fundamental evidence to the solicitors for a defendant in a criminal prosecution. Further, it was submitted that possession of unlawful exhibits for independent assay is excused by law. Of course, the public interest concerns were strenuously opposed.

The presiding Magistrate indicated an intention to uphold the subpoena. The matter was adjourned for further mention in one month, with the respective parties being requested to settle a consent order setting out agreed conditions of temporary custody of the copy exhibit.

It followed that the QPS conceded the right of the defence to access the material. However, they argued that an expert could not be trusted to maintain secure custody of the exhibit.

The QPS proposed an order in terms that the defence experts conduct the examination in a room at Police Headquarters under supervision by a QPS computer expert, with the use of one stand alone computer. Our experts advised that those conditions were unworkable in that they would restrict the scope of the forensic examination, compromise confidentiality and incur substantial additional cost.

The police service refused to budge. The DPP would not become involved. No consent position was reached by the next court date. The conditions of custody were again the subject of argument in Court. The QPS maintained a public interest argument, now with the support of the DPP. The police submitted that the court should favour the hypothetical risk of dissemination when balanced against the inconvenience to the defence.

The presiding Magistrate requested that the DPP provide an officer to attend at the laboratory of the expert for the currency of the forensic examination to oversee the security of the exhibit. The DPP declined on the basis of resource constraints.

After extensive argument, the presiding Magistrate made an order for production couched in the following terms:

1. That a defence solicitor be present at the office of the expert to supervise the currency of the forensic examination;

2. That a copy of the seized computer material be delivered to the defence for forensic examination by an independent expert;

3. That a solicitor’s undertaking be given in terms that the defence solicitor will take all reasonable steps to ensure that the material is not unlawfully disseminated; and

4. That the copy material (on CD) and any additional copies necessarily made in the course of the examination be returned to the QPS within one month of the date of delivery.

The abovementioned orders were expressly based upon the principle of full disclosure as set out in the cases of Kingston, Spazeri and Alister and s72 of the Justices Act.

COMMENTARY

Our experience in the matter is that enormous financial impost has flowed from the onerous requirement that a solicitor be present to supervise the forensic examination. The issue of one of comparative resources. The Crown has far greater access to resources than an individual defendant. Whilst the Crown has enunciated purportedly serious concerns about disclosure, it is unwilling to meet the cost of putting in place a supervisory arrangement perceived as sufficient to allay those concerns. That then creates a situation whereby the cost must be borne by the defence if the material is to be accessed.

The end result was that this office had to supply a solicitor to sit at the offices of the examining computer expert firm for a total period of 7 days at 8 hours per day. This could not be charged to the client and accordingly there was considerable financial loss incurred as well as the significant administrative inconvenience of having a solicitor out of the office for such a lengthy period of time when in fact the solicitor had not technical knowledge of what the expert was doing but was simply present at the expert’s office to view the retrieval of the tapes from the expert’s safe at the beginning of the day and view their return to the safe at the end of the day.

The requirement for supervision by a defence solicitor for the currency of a lengthy forensic examination causes financial prejudice to the accused in preparing a defence to offences charged pursuant to the Act.

The fair and just administration of criminal justice turns upon a principle of full and timely disclosure by the prosecution. In Alistair v. The Queen4 , Sankey v. Whitlam5 and R v Spazeri6 the High Court held that where a claim of public interest immunity is made, the balance in considering the conflicting aspects of the public interest must tip in favour of the individual defendant. In our submission, it is unfair to require that the cost of onerous custody arrangements be met by the defendant in order to meet the amorphous, overbroad and deficient public interest concerns of the QPS.

There must be some trust given to defence solicitors and to reputable and suitably qualified experts. Any expert who breaches commits an offence can be dealt with according to law. There must be an assumption that apparently respectable people will in fact comply with an Order of the Court.

The rules governing the temporary custody of seized computer material are developing. The issue of clear guidelines by the DPP and/or legislative amendment is required.

1 A mathematically authenticated bit stream copy (on CD).
2 Taskforce ARGOS
3 (a) contrary to the public interest; (b) an offence pursuant to the Act.
4(1983) 50 ALR 41
5(1978) 53 ALJR 11

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