Chapter 3

The Raid

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 they 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 and charger #
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

Items of Concern in the Case

The following items about the case are major concerns.

The Evidence Reports

The report by Det G dated 3 Nov 2016 is not supplied as Police evidence until September 2017. The main concern is with the report listing many items as having been checked out 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 but weren’t returned.

The report identified the Lenovo laptop as having been checked and cleared, yet Senior Constable Kelly stated to the Court in 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 which delayed 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 Kelly until March 2017 and August 2017.

It’s unclear what motivates Det Kelly to mislead 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 Ernest 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 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 skimmed by Ernest he asked for some file metadata be obtained to help prepare the defence. A subpoena to get the data was lodged but the Police have never supplied all of the data. It would take about 20 minutes to prepare it yet they fought against it

The 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 images are listed as the reason for charges despite them being legal with Commonwealth Censor Classifications with the books of their work still for sale in bookshops and being available in the National Library of Australia as well as the Mitchell Library of NSW - the main state library. It appears the Police involved in the case didn’t try to check if any of the material they identified was actually legal under the allowed defences of the law, nor did they ask Ernest about them, despite the many times Ernest told them the images were legal under the current law while in the Court hearings and interviews back in 2015, 2016, and 2017.

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.

The Police desire to not provide the full directory tree list of the files of concern to them is very suspicious as all it does is to allow Ernest to provide information on where they came from and when. Thus the Police not providing the information severely affects Ernest’s ability to properly prepare his defence of the case and to account for the images listed.

Bail Conditions

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 as 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 returning home immediately after an appointment.

The Police presented nothing to show Ernest was a danger to anyone.

The change to the bail conditions did allow both Ernest and Allyn to meet outside obligations and to allow Allyn to do some shopping while Ernest was attending an approved appointment. However, it did stop them from eating out or going to a show or doing any clothing shopping or doing any discount grocery shopping from the large stores in the city.

Chronological 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 have two dates and the second date is the date the information was made known to the accused, Ernest Bywater. Toward the end a few items have been missed as no action of interest occured.

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 which is over 100 km from any major town, and the wish to have the USB devices given priority. The sergeant said he’d pass the message 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 was so flimsy. 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 absed solely on that single comment and no other data.

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 he 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 then told Ernest to go to the station and they’d see him.

After a half hour wait Ernest spoke with Senior Constable Kelly. 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 as well as 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 Senior Constable Kelly 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 Police 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 Senior Constable Kelly 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 Senior Constable Kelly and explained, again, about Allyn’s mental health issues. Allyn had an exchange of emails to cover what Senior Constable Kelly 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. This loss of data later resulted in a loss of income from the projects that were cancelled for non-performance.

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 Senior Constable Kelly 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 (a public holiday)

Senior Constable Kelly 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 that date 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. He sounded very upset at not being able to get Ernest to attend the station before the Court hearing on the 28th of April 2016.

28 April 2016

At the Local Court Ernest asked for a new date as the Police wanted him to collect some items after the Court, and, depending on what they were the matter may 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 Senior Constable Kelly wouldn’t be available until midday. At the station Senior Constable Kelly 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 Senior Constable Kelly 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 at the end of the interview, or at any later date.

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 Senior Constable Kelly 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 sent an email to the case detective stating what the magistrate wants in regards of information for the next Court hearing. No reply was received by Ernest, not even an automatic confirmation of receipt.