Modern Day Witch Hunt
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:
Possessing, producing, supplying, or obtaining child pornographic material.
After a few preliminaries the police proceeded to search the house in an interesting circus. The lead detective was a large man who directed a second officer in the search, while a third kept a record of anything they took and put in an evidence bag, a fourth recorded all they did with a camera, while a fifth watched to see they didn’t break the relevant police protocols. There were a few other police officers around seeing no one interfered with things, but the five person search crew were very active.
In a way it was funny. They started the search in Ernest’s five metres long by three and a half metres wide bedroom. The door is at one end of the five metre wall with a cupboard on the right, and the bed behind that. Opposite the door is another cupboard, with two long benches beside it. There are no built in cupboards in the room. The result is the only open space is an ‘L’ shaped section not quite a metre wide that goes in front of the first cupboard for about two metres, then turns right to run between the benches and the bed to the end wall. With the lead cop at the far end, then the other four lined up in front of him, there’s damn little space left in the room for anyone else to stand in the room to see what was going on. Ernest picked up some print books he had for proof reading, and left the room by squeezing past the police officers.
After the search the room was seriously disturbed. Later, Ernest could not find many things, but he had no way to know if they were taken or had just been lost in the shuffle during their search. The same situation applied to the other rooms they really searched: the front room Ernest’s son, Allyn, now used as a bedroom, and the side room Allyn used to use as a bedroom, until it got too hot and he moved to the front room which has a large air conditioner in it. Little was done in the bathroom, kitchen, pantry, and laundry. However, when they went into the back room, and found a huge pile of old computer gear they took a few, and gave up on the much older gear. By the end Ernest had no idea of what they took, beyond his main computer and his ‘critical data back-up external drive.’
They did hand over a copy of the written list of items taken, but the information they had down on it was mostly useless. Some of the items they listed as ‘USB drives’ were actually sound cards clearly marked so.
One interesting event in the process was when they started to take Allyn’s main computer they noticed it had a water cooling system, and the cops didn’t want to have it in their car, in case it leaked. So they tried to take out the hard drives, found they had troubles, so they ordered Allyn to take the drives out to give to them.
At the time Ernest told the police about Allyn’s mental health condition and asked them to process the mobile phones as a safety issue, then the USB device as a priority, so the could get Allyn’s life back to normal as quickly as possible. The police said the inspection of what they took should only take two to three months, and they’ll have anything not suspicious handed back then.
The Items Seized
The selection and recording of the items seized made it clear the officers involved had no understanding of the technology involved. Also, many items taken were a quantity of it, but they noted only one item. Four 4 TB hard drives removed from Allyn’s computer were listed as just one Seagate HDD, not the four taken, and later returned in the one bag with a single exhibit number on it (more on that, later). Two sound cards taken were listed as USB drives, because they used USB plugs, the same for a Bluetooth transmitter, and a USB Hub / Card Reader. One of the listed SD cards is actually a micro SD to SD converter, and is clearly seen to be what it is. Some of the SD cards were new items taken out of the factory sealed packages of the e-book readers they were with. The readers had been bought for resale, but now can’t be sold as new, a loss of a few hundred dollars each. They even took the printed books Ernest took from his bedroom to try to read while they did their search. They also insisted on having the card numbers for Ernest’s banking cards, too. Over 90 devices were seized, but only 35 exhibit numbers were issued.
In the many months between the seizure and the details of what was taken became important Ernest had lost the flimsy papers he’d been given as his copy of what was taken. However, in a document handed to the court by the police on 19 January 2016 they stated thirty-six items of interest had been seized, and nineteen were still to be examined. In the list provided by the police, in the next chapter, they listed only thirty-five items, did one get lost, or couldn’t they count properly in the first place? Only the original police records can answer that question.
List of Items Seized Made on the Day
Item No:... Exhibit No:... Description
01 ... X0001725270 ... ASUS Computer #
02 ... X0001725271 ... Flash Key #
03 ... X0001725272 ... Mobile Phone
04 ... X0001725273 ... Black and Silver Camera
05 ... X0001725274 ... Dell Computer Tower
06 ... X0001725275 ... Nexstar #
07 ... X0001725276 ... CD’s / DVD’s #
08 ... X0001725277 ... ASUS Tablet #
09 ... X0001725278 ... Buffalo HDD #
10 ... X0001725279 ... San Disk SD
11 ... X0001725280 ... White Computer Tower
12 ... X0001725281 ... Speedy SD
13 ... X0001725282 ... Panasonic SD Card
14 ... X0001725283 ... Ultima SD Card
15 ... X0001725284 ... HTC Mobile Phone
16 ... X0001725285 ... USB Drives
17 ... X0001725286 ... DVD/CD Drive
18 ... X0001725287 ... HP Laptop #
19 ... X0001725288 ... SD Card
20 ... X0001725289 ... USB Drives
21 ... X0001725290 ... Dell Laptop #
22 ... X0001725291 ... Seagate HDD
23 ... X0001725292 ... Cooler Master
24 ... X0001725293 ... SD Card
25 ... X0001725294 ... Lenovo laptop #
26 ... X0001725295 ... KDATA USB
27 ... X0001725296 ... ASUS Tablet
28 ... X0001725297 ... Samsung HDD
29 ... X0001725298 ... Stack of CD’s / DVD’s #
30 ... X0001724892 ... Seagate HDD
31 ... X0001724893 ... USB Drive
32 ... X0001724894... 8 Novels #
33 ... X0001724895 ... Icon Computer Tower
34 ... X0001724896 ... Silver Computer Tower
35 ... X0001724897 ... USB Drives
About Ernest and Allyn
Ernest and Allyn live in a small rural town over one hundred kilometres from anywhere, and it suits them both. They live much like hermits, and stay inside working on their computers. The local shop is only a couple of blocks away, and handles most of their grocery needs well. Due to a number of regular medical and government appointments they’re often in a city they used to live near, and they do their specialist shopping while in the city.
Allyn is Ernest’s twenty-eight year-old son. He has one of the more severe forms of Asperger’s Syndrome, which is part of the Autistic Spectrum. The main problem with Allyn is he has major problems communicating with people, because most people speak at a speed which is too fast for him to comprehend what they say. Allyn has to hear and fully process words one at a time, be they written or spoken. He can read a lot faster than he can understand speech. He’s on the disability pension because of his inability to understand what most people are saying to him.
Due to problems in school, before he was properly diagnosed in high school, Allyn has some anger management issues, as well. He doesn’t drive, because he doesn’t have a drivers’ licence. Every time he gets behind the wheel of a car he has an anxiety attack.
Allyn spends most of his life on-line exchanging messages with people, and also playing various on-line computer games. Without access to the games and on-line contacts he gets extremely wound up, anxious, and angry. Then it takes a lot out of Ernest to calm Allyn down again.
Ernest is in his early 60’s, has a milder form of Asperger’s Syndrome, a damaged back, left hip, left ankle, and right knee. He’d worked most of his life. He did part-time work after school and during school breaks from when he was thirteen years old, and started full-time work when he was sixteen years of age. Over the years he worked at a wide variety of jobs. However, his health has been declining since he was diagnosed with diabetes in 2004, and in 2005 he was put on the disability pension.
For the last decade most of Ernest’s life has revolved around his story writing. He also did some volunteer work at a Family History Centre, helping people look up records on their ancestors.
All his life Ernest has had an interest in naturalism and nudity. He collected a large number of naturalist magazines in his younger days. When he got a scanner for his computer in 1990 he started scanning the magazine images into his computer. He then found out about various websites where the same magazines were available on-line. About that time he also found out about newsgroup and how varied was the information could be found there. From 1990 through to about 2010 Ernest used automated software to download and store on his computer various files from specific websites and newsgroups. Many were nudist groups and images. Some were from artistic photographic sites as well.
Over the years Ernest accumulated over two and a half million images of everything from aardvarks to Zuni ruins in this way. However, he was collecting them at a much faster rate than he could review them to decide what to keep and what to delete. The collection of unexamined images grew. In mid 2015 Ernest bought new computer gear to have one powerful enough for him to go through all the backlogged files without taking forever to move or delete files in large numbers. He then moved all the files he could find on old computers onto the new computer so he could start going through them to delete files he didn’t wish to keep. At no time did Ernest take, create, or post any images of nude people.
He made a back up copy of everything, over seven million files, and about half are images with about a million being images of people. Then the Raid mentioned earlier happened.
Other Events in the Case
Theses events are in chronological order, and with a summary under the date it occurred. If the exact day isn’t known the month and year is given. Some items are in italics and have two dates. The second date is the date the information was made known to the accused.
13 October 2014 (December 2015)
The 2014 New South Wales Police in Albury were provided a file by the Queensland Police concerning a project called Operation Argos. In the process of that they obtained a lot of material about sets of images posted on the website Image Source. The material included some comments made via Ernest’s account to images posted by other users. These are stated as being made between 29 July 2011 and 5 February 2014.
Police traced the IP to Ernest’s real identity, because Ernest had made no effort to hide it, since he wasn’t involved in illegal activities of any sort, and he saw no reason to hide his access. He did use a nickname to limit spam from people harvesting names and emails at the site.
20 July 2015 (December 2015)
The Albury police applied to the Albury Local Court for a search warrant, which the Court Registrar granted. The warrant was served a few days later, as noted at the start in the section called The Raid.
(Note: Ernest learned of the information above in December 2015 as a result of the police submission to the Local Court at that time.)
First week of August 2015
About a week after the raid Ernest rang the police station, and spoke with a sergeant about the case. The officer was familiar with it, and told Ernest the officer handling the case was unavailable. So Ernest restated his position about the mobile phones being a safety issue, due to the remote location of where he lives, over 100 km from any major town, and the wish to have the USB devices given priority. The sergeant said he’d pass the massage on, and will ask the officer handling the case to call Ernest. No call was received from the police officer involved.
5 October 2015
Eleven weeks since the search. Ernest phoned the police station to follow up on what was happening, and was told a message would be passed to the detectives, and he’ll be called back. No such call received.
19 October 2015
Ernest made another follow up phone call, and spoke to the Local Area Commander, he was told the detectives will call back. A Detective Inspector phoned Ernest, and they talked about the matter. Ernest again stating his order of priorities, and why. An hour and a half later the case detective rang to tell Ernest of delays due to qualified staff issues, and nothing was done yet. Ernest again stated the priorities, and why.
23 October 2015
Ernest visited the courthouse to see the search warrant application, and was surprised at the basis for it. He also left message with the police to have the detectives call him. No phone call from the police is received.
Although Ernest was allowed to view the request for the search warrant he was refused permission to make or have a photocopy or to take a photo of it to take away with him.
A summary of the reasons for the issue of the search warrant is:
- Ernest posted a comment request for a password to several image sets at an overseas image website,
- One of the restricted sets was deleted for child porn,
- The other sets were deleted for violations of site rules,
- A comment on one set not deleted was the model had a ‘nice smile,’
- A comment on another set was about the set being in the Nude Category, but the set was non-nude. A comment by member of the Australian Institute of Criminology stated the comment showed the poster was only interested in nudity at the site.
The request did mention Ernest had several images posted to the site, and none of them were of people or of any concern to the police.
On the paperwork shown to Ernest there were no names of the image sets involved, no copies of the images involved, and no information about the passwords ever being received, or of other image viewed by Ernest. Nor an indication of any images seen by Ernest were unlawful.
27 October 2015
Ernest wrote a letter to the Police about the issue and requested the return of the materials, and gave his contact details with a requested offer to discuss the matter. He also discussed, at length, how the site worked, and how few password requests were ever fulfilled. The police didn’t contact Ernest at all. A copy of this first letter is included, later.
16 November 2015
Ernest visited the courthouse to speak with the Acting Registrar about the situation. He was advised the reason he couldn’t get a copy of the search warrant request was because it was against departmental policy, and not the law. He can see it or approve others to see it, because the law says they must allow that. The Acting Registrar spoke with the police about the matter, and told Ernest to go to the station right now, and they’d speak with him.
After a half hour wait Ernest spoke with the case detective. The phones had been cleared in the last few weeks, but they could only give him his, because they’d misplaced Allyn’s phone. They’d started a review of one computer, but hadn’t even looked at the USB devices or any of the items Ernest had listed as being as priority items. Arrangements were made for a formal interview at another town’s police station for 10:00 a.m. on 24 November 2015, because Ernest will be in the town on that day. Ernest mentioned he had other appointments on the day, but was assured the interview would be finished by noon. At the meeting Ernest asked for important data files on his work be copied and given to him after they checked them, he was flatly refused being given anything.
Angered by the police officer’s total disregard for his son’s situation and welfare, and their refusal to allow him to get their lives back in order, after leaving the police station Ernest returned to the Court House, to lodge a request with the court for the return of the materials seized.
24 November 2015
Ernest had a formal interview with case detective at another police station. It started almost an hour late, and ran until after 2:00 p.m. when Ernest had to halt it to go to another appointment he couldn’t avoid. Then another fifteen minutes delay for his son’s phone’s paperwork. No USB devices had been examined yet, so they couldn’t be returned. Before the interview started he was told he’d be given a copy after it, but wasn’t.
8 December 2015
At the Local Court Ernest was informed, in open court, the police had concerns about items on the drives of one of the computers seized. On the orders of the Magistrate Ernest was given a copy of the report the police were lodging with the court. The case was set for a further hearing on 19 January 2016. After leaving the court Ernest left a message at the police station asking for any of the three police officers involved in the case to call him. He received no phone calls.
The document lodged by the police stated the technical staff to exam the items taken had been booked for 6 to 8 August 2015, but were not available then, due to unforeseen circumstances. However, a local police technical officer was able to check the two phones and the one computer in recent weeks. Totally ignoring the priority list from Ernest.
15 December 2015
Ernest wrote to the detectives setting out, in writing, his priorities and why they were that way. He also offered to amend the items to be returned, and let them have the rest for as long as they wanted. Ernest asked for certain work related data files be copied and provided to him to enable him to complete the projects. He also asked they contact him to discuss the matters in the letter. He wasn’t contacted about the letter.
28 December 2015
Ernest was called by the case detective because he wanted to speak to Allyn to arrange an interview at the local station in two days time. Ernest said he’d pass the message on when his son woke up, because he was asleep. When Allyn woke up Ernest gave him the message, and Allyn was angry about the sudden request. Ernest relayed a number of phone messages to the case detective, and explained, again, about Allyn’s mental health issues. Allyn had an exchange of emails to cover what the constable wanted. This is the only police initiated contact with Ernest or Allyn since the execution of the search warrant until this date. All other contacts had been initiated by Ernest.
Note: At this time it was clear this was going to drag out for months. Until now spending on replacement of items had been limited, but the lengthening delays in getting things back were making some things now very urgent, and a lot of replacement equipment was purchased so Allyn and Ernest could get their life back to as normal as possible. However, that was severely restricted still, because a lot of critical data was still with the police. Thus Ernest still wasn’t able to complete outstanding work projects or answer emails that were outstanding at the time of the search.
11 January 2016
Ernest wrote to the police and the court amending the list of items to be returned to those belonging to his son and the USB device he keeps his critical data back-up copies on. These would enable his son to return to a normal existence, and allow Ernest to complete most of his work projects.
19 January 2016
The matter returned to the local court. Again the police stated they had trouble with trained technicians to examine the items. In the written report to the court, of which Ernest was given a copy by the court, the police state that of the 36 items taken 19 were yet to be examined. They identified one item as having some material of concern to them. They also stated two items, the phones have been returned. They also stated the local technical officer needed four more weeks to complete his examination of the material, due to his other operational needs.
The magistrate adjourned the matter until 19 March 2016 to allow the examination, and he indicated he wanted it resolved by then.
3 February 2016
Ernest wrote to the police asking for the cleared items to be returned, and also asked for items that weren’t data storage devices to be returned. He requested they contact him about the matter. He was not contacted about the letter or its contents.
17 March 2016
The matter went back before the Local Court, but a different magistrate was on the bench. The magistrate was not prepared to hand anything over until after the police had finished the investigation. There was no new report on the matter lodged by the police. The matter was set over again until 28 April 2016. The Police Prosecutor agreed to pass on a request to the case officer to have the examined items that have been cleared returned to Ernest.
31 March 2016
Ernest wrote to the court and the police to amend the list of items to only the items that didn’t have material they had concerns with.
25 April 2016
The case detective rang Ernest at 5.35 p.m. to ask him to visit the police station on 27 April 2016 to collect some items ready to hand over. The detective was not happy when Ernest said he was unable to do it on the Wednesday, due to health issues, and Ernest suggested it happen after he go to the court on 28 April 2016. The case detective was extremely persistent in trying to see Ernest on 27 April 2016, before the court hearing on 28 April 2016
28 April 2016
At the Local Court Ernest requested a new date, as the police wanted him to collect some items after the court, and, depending on what Ernest was given, the matter may or may not be resolved. A new date of 9 May 2016 was set.
After the court Ernest went to the Police Station after having an early lunch at 11:00 a.m. because Ernest was told the case detective wouldn’t be available until about midday. At the station the detective came out to see Ernest just before midday, and took him to the custody room where Ernest had to wait for over an hour while the detective arranged to do an interview. After a long interview where Ernest was shown some images he’d never seen before, which the detective stated came from some of the materials taken in the search, Ernest was taken down and charged with possession of child abuse material. At the start of the interview Ernest was told he’d get a copy of the interview, but he wasn’t given a copy.
Ernest was in the police station from about 11.30 a.m. until about 8.00 p.m. when Ernest left after bail was allowed and Ernest was told to appear at the Local Court on 17 May 2016. During that time Ernest was offered, and given, a number of drinks of water. Ernest was never offered any food at all. Twice Ernest asked the Custody Officer for a couple of the sweets Ernest had in his bag so he could keep his blood sugar levels up. The Custody Officer allowed this because Ernest had earlier informed them he was diabetic, something the case detective knew from the interview at the other police station. More about the bail conditions later.
At no point on the day did the case detective attempt to return any of the removed items to Ernest, despite promising to do so.
9 May 2016
At the Local Court the magistrate was hesitant to order anything be handed over due to the charges laid. He instructed Ernest to write to the police for a list of items with the status of their examination and how they relate to the charges.
Ernest left a message for the case detective to call him, because the detective wasn’t working that day. Ernest was not called back
11 May 2016
Ernest sends an email to the case detective stating what the magistrate wants in regards of information for the next court hearing. No reply is received, not even an automatic confirmation of receipt.
17 May 2016
Just before court commences the police prosecutor hands over a list of the items seized with notations of what can be returned today, and the status of the other items.
The follow items on the list provided earlier were returned to Ernest: 04, 05, 10, 11, 12, 13, 14, 16, 17, 19, 20, 22, 23, 24, 26, 27, 28, 30, 31, 33, 34, and 35. He was informed items 18, 21, and 25 were being retained to be shipped to Sydney for examination because the local police didn’t have the chargers needed to power them. The case detective had said there was material of concern to them on items 01, 06, and 09. The case detective said he had no intention of returning anything else until after the court case was over, regardless of what the examinations showed. He also said he doubted anything else would be returned then.
7 June 2016
The matter went before the Local Court, along with an application to vary the bail conditions. But the matter was adjoined unheard.
14 June 2016
The matter went before the Local Court, with an application to vary the bail conditions. But the matter was adjoined unheard.
28 June 2016
The matter went before the Local Court, along with an application to vary the bail conditions. Ernest pleaded not guilty to the charges. The bail variation hearing was deferred to later in the day. The case detective later turned up in very casual dress, spoke with the police prosecutor, and when the bail variation was heard he opposed any bail variations, but offered no reason or evidence to support the opposition. The police were ordered to deliver their brief of evidence by 8 August 2016.
After a short presentation by Ernest’s solicitor, and nothing presented by the prosecutor except his opposition, Ernest was examined under oath. A mild change in the bail conditions was approved to allow Ernest to attend medical, legal, and government appointments for him or Allyn.
16 August 2016 - Criminal Case
When the matter was before the court on 16 August 2016 the police said they tried to deliver the brief to the NSW Legal Aid Office on 8 August, but were unable to deliver it. NSW Legal Aid refused to accept the brief because the case was now handled by another solicitor Legal Aid had assigned it to. They gave the police the address of the new solicitor, located one hundred metres down the road in the same street. The police went to the office, and it was unattended, so they didn’t hand the brief to anyone. The solicitor was in court, just one hundred and fifty metres back down the same street. The police gave no reason for not checking the courthouse, they simply checked the office then went back to the station.
A new charge was laid on the day, and the police asked for six weeks to get statements from the Australian Federal Police (AFP) officer about matters the AFP informed the NSW police about back in 2014. The delay was granted, and they were given to 22 September to provide a brief of evidence to Ernest’s solicitor, with the matter being adjourned until Thursday 29 September 2016.
The two civil matters on the return of data and property were also set for 22 September 2016. In court the magistrate sought confirmation as to what was wanted from the orders. Ernest stated he was only seeking the data the police have already checked and cleared, plus a full list of what they still had, along with a schedule of when they will check it. He also said he wanted a schedule for the return of cleared material.
The magistrate requested a report from the police to be tabled on 22 September 2016 about the ability to clear unlawful files off the hard drives without the unlawful files being recoverable afterwards.
29 September 2016
The police brief isn’t ready. Set down for 7 November 2016.
3 November 2016 (22 August 2017)
Detective G submits a report on the technical examination of 24 exhibits containing 54 devices and materials seized during the search in July 2015. The list shows 8 of the items seized are noted for further examination while 46 items listed are cleared by the software used to examine them. This includes the two cell phones which were further examined and returned despite being alerted on by the software. The Lenovo laptop is shown as cleared while the two older laptops aren’t on the reports list of items checked. The list doesn’t include the other exhibits which had already been returned to Ernest. One of the items seized was a computer with 5 separate devices installed in it of which 2 are listed for further examination.
7 November 2016
The police brief isn’t ready. Set down for 28 November 2016.
28 November 2016
The police brief isn’t ready. Set down for 29 December 2016.
12 December 2016
Civil case on the return of materials back before the court. Some confusion due to the way the papers are. Ernest is ordered to lodge new paperwork. Ernest lodges the new paperwork on 13 December 2016.
19 December 2016
The new police brief is delivered to Ernest’s solicitor.
20 December 2016
Ernest visit the solicitor to view the police brief because the police request Ernest not be given a copy of it or be allowed to see it. Ernest’s solicitor got the court to allow Ernest to view the brief under supervision by the solicitor. The contents are discussed, and it’s noted further details are needed. Ernest’s solicitor lodges a subpoena with the court for the additional information wanted about the materials listed in the brief.
23 January 2017
The police are unable to provide the subpoena information.
16 February 2017
Police case officer calls to get Ernest’s email to send Ernest the information requested on the civil case within 24 hours. He also says the state experts can’t view the material before 11 July 2017.
17 February 2017
Ernest emails the detective that his email has not yet been received.
24 February 2017
Detective sends an email with documents giving reason for not wanting to return any of the materials other than a few he will return on 8 March 2017.
24 February 2017
Ernest respond to Detective’s email noting his previous email doesn’t address the items wanted returned by court order, and stating the criminal case matters in the subpoena be left for the solicitor.
27 February 2017
Detective calls to state he doesn’t want to return anything else at all
8 March 2017
Civil case on return of data heard at Holbrook Court. Detective lodges letter on technical aspects to object to returning anything. Expert not available, so matter deferred. Detective informs the court the 3 laptops have to go to another station for checking. Court instructs that be done.
1 May 2017
Criminal case down for full hearing, but deferred to 11 July 2017 due to police not providing material in the subpoena.
29 June 2017
Detective calls to say the 3 laptops are checked and ready to collect.
11 July 2017
Case deferred to 3 November 2017 due to subpoena not being filled. Court orders it be done by 27 August 2017. Called at police station to collect the laptops, but can’t because detective is not there and no one can hand them back except him, on his orders.
25 July 2017
Civil case back in court, deferred because the police aren’t ready.
1 August 2017
Police not ready to fill subpoena.
22 August 2017
Civil case back in court. Ernest is told to lodge new paperwork with more details. Police refuse to return anything after the 3 laptops today. The matter is put down for hearing again on 16 February 2017.
Ernest goes to police station to get the laptops. Detective is very angry Ernest opens each item to check them prior signing for them. The newest laptop is missing its battery pack, which the detective is able to find within 2 minutes. Of the over 90 devices seized the police retain over 30 devices that are in the 5 exhibit numbers with only 6 devices listed as relating to charges. One case is a list of 21 optical discs in the 1 exhibit number where 1 disc is listed as being relevant to a charge. Yet the police refuse to return any of the other discs or material which have been examined and cleared by their experts.
Detective wants Allyn to come in for a formal interview. When Ernest says he may not wish to the detective says he’ll send police officers to bring him in if he doesn’t come in voluntarily.
23 August 2017
Ernest emails detective reminding him of details about Allyn’s mental health condition, the conditions under which Allyn will attend, and the fact he’ll be available on 5 September 2017.
3 September 2017
Detective emails to say he won’t be available on 5 September and he still wants to conduct an interview with Allyn.
5 September 2017
Police have not yet supplied the subpoena information. Ernest lodges the new paperwork for the civil case.
17 October 2017
Police don’t fill subpoena request, and lodge a letter saying they can’t, but will allow the defence to send a private expert to get it.
3 November 2017
Criminal case to be heard. Deferred due to police not filling subpoena. Ernest makes and sends solicitor instructions on how to get the data.
7 November 2017
Police claim they can’t fill the subpoena, while Ernest’s solicitor says they can, if they wish to. Arguments set to be heard on 28 November.
9 November 2017
Ernest files new affidavits for the return of the cleared materials.
28 November 2017
Police refuse to supply the information from the subpoena requested in December 2016. Matter set for further hearing 18 December 2017.
28 November 2017
Police still refuse to supply the information from the subpoena requested in December 2016. Magistrate not happy the Crown Solicitor is not there to argue the police case for the refusal.
15 January 2018
Police still refusing to supply the material in the subpoena. The Crown Solicitor agree Ernest can pay to have a third party expect examine the items to gather the material. Set for return 29 January 2018.
29 January 2018
Police refuse to allow an external expert access to the exhibits and they want 6 weeks to prepare and supply the request information. The dates set for hearing both cases on 15 February and 16 February 2018 are vacated. Return of subpoena set for 26 February 2018.
26 February 2018
Ernest attends court as his bail notice expires on 28 February 2018 due to the matter being returned. However, the matter isn’t listed, and a check with court staff shows they have it listed for 26 March 2018, so they amend his bail notice and send him away.
Note on Material of Interest to the Police
Included in the material of interest to the police are images from nudist magazines from Australia, New Zealand, Europe, the UK, and the USA. They also noted images from internationally famous photographers like Sally Mann, Bill Henson, Jock Sturgess and David Hamilton. Some of these image are listed for the reason for charges.
Most of the material of interest to the police have sub-directories and file names not familiar to Ernest. For some unknown reason the police had truncated the directory list for those files, thus it’s hard to say where they came from and what they related to. It’s likely they relate to files of backed up material from other people’s computers Ernest fixed for them where he copied the directories and files in bulk so he could place them on the repaired computer. Without the full directory tree list Ernest isn’t able to say if this is so, or not.
The main police brief of evidence is a printed document with no images of child abuse material copied in it, and it’s mostly a list of files, yet the police argued extensively in court for a copy of the document not to be given to Ernest to examine it. Thus they make it very hard for him to prepare a proper defence due to not knowing what they’re claiming.
Major Items of Concern
One major item of concern is the report by Det G dated 3 Nov 2016 and not supplied as police evidence until Sept 2017. The main concern is with the report listing many items as having been checked at prior to the report being written. The exact date of the work isn’t stated in it, just the work had been done prior to the report being signed on 3 Nov 2016. While the other documents show most of them had been examined prior to May 2016 so they could be returned at that time.
The report identified the Lenovo laptop as having been checked and cleared, yet Det K stated in court December 2016, January 2017, and March 2017 all three of the laptops (including the Lenovo) had still to be examined. He then arranged to send all three away to delay their return several months.
Related to that is the number of items known to be cleared on 3 Nov 2016 were not returned by Det K until March 2017 and August 2017.
It’s unclear what motivates Det K to lie to the court about the items having been checked or not, and why he went out of his way to delay their return after they were checked and cleared. Nor is it known why he continues to refuse to return devices and files that have been checked and cleared by the police experts.
The only reason I can think of for the delays in not returning some of the cleared devices is because it means he has to do paperwork which will show he made mistakes when they listed the items collected during the search. Thus he’d may want to make others suffer for his mistakes so he can hide them from his boss.
Another major item of concern is in August 2016 the magistrate was ready to set a hearing date, but the police wanted 6 weeks to get some more statements. It took the police until November 2016 to lodge a full brief of the charges, and when examined Ernest asked for some file metadata be obtained to help prepare the defence. A subpoena to get the data was lodged, but as of March 2018 the police have not yet supplied the data. It would take about 20 minutes to prepare it, yet it’s not done.
When Ernest was charged the police sergeant applied the default ‘cookie cutter’ version of the terms applied to someone accused of a crime to do with children:
- Continue to live at his registered residence.
- Not go within one hundred metres of a school or child care centre.
- Be of good behaviour.
The fourth point of daily reporting to police was voided because the nearest manned police station was over forty kilometres away.
Most of Ernest’s life is already spent as a hermit, and has so for more than ten years. He doesn’t leave the house except to do yard work - when he’s well enough to do so, collect the mail, go shopping, go to church, do some volunteer work, go to medical appointments, and to take Allyn to appointments for government agencies. Most of these are at the city they used to live near, and is now over one hundred kilometres away.
On examination of maps Ernest saw he couldn’t visit the city because the highway went within the restricted zone around a school. Checks of the back ways into the city showed the same problem. Also, if he could get into the city movement in the city was restricted by the many child care centres and schools in it, most are on major roads within the city.
An application to vary the terms was made by Ernest’s solicitor, and was down for a first hearing on 7 June 2016. It was 28 June 2016 before it was finally heard. After it was proven Ernest couldn’t attend any medical appointments or get Allyn to his government required appointments the magistrate approved a variation to allow Ernest to drive past schools, child care centres, and sports ovals without stopping while going directly to an appointment for the government, or for medical reasons, or for legal reason, and leaving the area immediately after an appointment.
The police presented nothing to show Ernest was a danger to anyone.