[LINK] It's Queensland - (sorry to Qlders)

[rene]

On Thu, 26 May 2011 20:43:24 +1000, Richard Chirgwin wrote:
[...]
> However, the Qld code allows for "arrest for questioning". But the
> circumstances in which Grubb was questioned did not *fit* "arrest for
> questioning": there was no suspicion that he had committed any crime.
> Merely being in possession of something that might-or-might-not have
> evidence is not enough. To "arrest for questioning", the suspicion
> has to rest directly on the person arrested. This was, IMO,
> misconduct by QPS.

Imo, the police's claim that they "arrested for questioning" appears to be 
nothing more than a poor attempt to explain/excuse their conduct when 
questioned by other journalists etc. 

According to the transcript, the officer said: "I am now going to tell you 
that you are now under arrest. OK? In relation to receiving unlawfully 
obtained property. Ok? And we are now seizing your iPad."

That description of an offence the officer presumably reckoned he 
"reasonably suspected" (for purpose of arrest for purpose of seizing 
something "to obtain or preserve evidence relating to the offence") appears 
inadequate (and presumably would have been question if a criminal defence 
lawyer had been present) because, among other things, it seems it could be 
either:
* Unlawful possession of suspected stolen property (s16 Summary Offences 
Act); or
* Receiving tainted property i.e. property stolen or fraudulently obtained 
(s432-433 Criminal Code).

Even *if* Qld police truly believe/d a *copy* of a digital image is capable 
of being a thing that has been stolen (and I fail to see how it can be), 
conviction for either of the above offences appears to require, (among 
other things), in the first case that the person did not have a "reasonable 
explanation" for how they came into possession of the thing, or in the 
second case 'proof' that the person had reason to believe the thing they 
were receiving was stolen. Given the type of "property" and the questions 
and answers up to the point of arrest, it's imo extremely difficult to see 
how they could have "reasonably suspected" the person had committed an 
offence, at the time they decided to arrest and seize (at least unless they 
don't have to consider the likelihood, or lack thereof, of successful 
prosecution re the 'suspected' offence, and perhaps they don't have to).

Imo, looks very much like the arrest/seizure was really for the purpose of 
hoping to obtain something that might be evidence of an offence that might 
have been committed by someone else. The quick return of the seized item, 
after lawyers got involved, also seems to me to suggest that some level of 
misconduct, or sheer incompetence, occurred.

Imo, "the media" really should 'pursue' Qld police on the question of 
whether or not they are conducting investigations/inquiries in relation to 
the activities of the person who actually accessed the image and what the 
outcome of such investigations, if any, is.

Irene