Chapter 1

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 The charge of the use carriage service to access child pornography between 29 July 2011 to 5 February 2014 was withdrawn by the Crown Prosecutor as not worth the trouble when they got involved with the case in 2018.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.