(The Honourable Chief Justice Kourakis, The Honourable Justice Livesey and The Honourable Justice Bleby)
27 November 2020
CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - IMPROPER ADMISSION OR REJECTION OF EVIDENCE
CRIMINAL LAW - EVIDENCE - JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE - ILLEGALLY OBTAINED EVIDENCE
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - PROCEDURE - SEARCHES OF PERSONS, PROPERTY OR PREMISES
CRIMINAL LAW - PROCEDURE - WARRANTS, ARREST, SEARCH, SEIZURE AND INCIDENTAL POWERS - WARRANTS - SEARCH WARRANTS - GENERALLY, ISSUE AND VALIDITY
This is an appeal against conviction of two counts of trafficking in a controlled drug contrary to s 32(3) of the Controlled Substances Act 1984 (SA).
The appeal is against the failure of the judge at voir dire to exclude the evidence of text messages recorded on the appellant’s smartphone. Another judge heard the trial and, on the strength of the text messages, was satisfied beyond reasonable doubt that the appellant had trafficked in a controlled drug, although no drug was found.
The appellant’s smartphone was seized by an officer from the appellant out of a bag in the changerooms of a football ground where he was training. This officer was the holder of a general search warrant issued pursuant to s 67 of the Summary Offences Act 1953 (SA) authorising the search of premises and the seizure of, amongst other things, items which may afford evidence of offending.
The appellant contends the officer who held the general search warrant had no authority under s 68 of the Summary Offences Act 1853 (SA) to seize the smartphone and the illegality of that seizure required the exclusion of the evidence of the text messages.
Held per Kourakis CJ (Livesey J contra, Bleby J not deciding) dismissing the appeal:
1. The smartphone was lawfully seized pursuant to s 68 of the Summary Offences Act 1953 (SA).
2. The power to search a person under s 68 is supplemented by the powers recognised in Ghani v Jones [1970] 1 QB 693.
3. There was no forensic unfairness in adducing evidence of the text messages, although the appellant should have been cautioned before he was asked to provide his personal identification number.
Held per Livesey J:
1. The mobile phone was lawfully seized pursuant to s 68 of the Summary Offences Act 1953 (SA) and the common law power of evidence retention for the purposes of investigation and prosecution.
3. Despite the failure by police to give a caution before demanding the appellant’s personal identification code, the proper exercise of any discretion did not require the exclusion of the derivative evidence in the circumstances of this case.
Held by the Court:
1. The seizure of the…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
Middlin-Hannah v The Queen [2020] SASCFC 112
Case
[2020] SASCFC 112
Decision Date
CaseChat Overview and Summary
The appeal concerned the admissibility of evidence obtained from the appellant's mobile phone, seized by police during an investigation into drug importation. The appellant, Mr Middlin-Hannah, was suspected of importing MDMA, and police, acting under a general search warrant, searched his home and subsequently his car. While no MDMA was found, cocaine and cash were seized. Police then requested Mr Middlin-Hannah's mobile phone, which was locked, and he was informed that it would be seized if incriminating evidence was found. The appeal was heard by the Full Court of the Supreme Court of South Australia.
The central legal issues before the court were whether the mobile phone was lawfully seized and whether the subsequent request for the phone's PIN and the adducing of evidence from the phone constituted forensic unfairness. The court was required to consider the scope of police powers to search and seize property under the *Summary Offences Act 1953* (SA), particularly in relation to the seizure of electronic devices and the implications of the "accusatory stage" of an investigation on the admissibility of evidence.
The court reasoned that the seizure of the mobile phone was authorised by section 67 of the *Summary Offences Act 1953* (SA), which permits the seizure of property suspected of being evidence of an offence. The judges found that the police had reasonable grounds to suspect the phone contained evidence of drug trafficking, given the information received from an informant and the appellant's prior convictions and admissions relating to drug offences. The court also determined that there was no forensic unfairness in the process of obtaining the PIN and accessing the phone's contents, as the appellant was informed of the potential seizure and the opportunity to have the phone returned if no incriminating material was found. The court distinguished the situation from circumstances requiring a caution under the *Summary Offences Act 1953* (SA), finding that the interaction had not yet reached the stage of a formal interview.
The appeal was dismissed. The court concluded that the mobile phone was lawfully seized and that the evidence derived from it was admissible.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
I would dismiss the appeal. The smartphone was lawfully seized pursuant to the power conferred on DBS Napper by the general search warrant. There was no forensic unfairness in adducing evidence of the text messages resulting from the request for the PIN. I elaborate on my reasons below.The evidence On 8 August 2017 police, under the command of DBS Napper, who was the holder of a general search warrant, searched Mr Middlin-Hannah’s home at Edwardstown. The police had received information from an informer that Mr Middlin-Hannah and a friend had imported the drug MDMA from Holland. Their information was that Mr Middlin-Hannah had 10 grams of it in his home, and that the remainder was stored at his friend’s home. Adding to the intelligence from the informant, DBS Napper knew that Mr Middlin-Hannah had been convicted in 2011 of trafficking in ecstasy tablets and, in the same year, had been issued with a drug diversion notice for a small amount of methylamphetamine. It was also known that in 2014 he admitted to police that he was an occasional user of cocaine. Mr Middlin-Hannah was not present when his home was searched. The police were told that he was a football training. No MDMA was found but police located a small quantity of cocaine and $6,470 in cash. Both the cocaine and the cash were seized. Notwithstanding the failure to find any MDMA, it was accepted in the appellant’s written submissions that the police had reasonable grounds to search the home. Acting on the information given to them during the search the police went to the football clubroom. They arrived there 15 minutes after the search of Mr Middlin-Hannah’s home. On being called, Mr Middlin-Hannah came out of the changerooms. His car was then searched. Again, it was accepted in Mr Middlin-Hannah’s written submission that the police had a reasonable suspicion warranting the search of his car. However, in oral submissions the appellant’s counsel contended that the failure to find any MDMA in Mr Middlin‑Hannah’s home cast so much doubt over the police intelligence that no more than a bare, but unreasonable, suspicion remained. DBS Napper testified that he did not conduct a personal search of Mr Middlin‑Hannah when he came out of the changerooms because he was in sports attire and DBS Napper, unsurprisingly, thought it unlikely that anything relevant would be found on his person. In witness statements received into evidence DBS Napper gave this account of events after Mr Middlin-Hannah’s car was searched:I asked MIDDLIN HANAH for his mobile phone. He advised me that it was in the changerooms. I requested he grab the phone and hand it to me. [By asking him to do this I was not giving him a choice.][2] I followed MIDDLIN HANNAH into the change rooms and he grabbed his bag from the bench. He then reached in and took out his phone and handed it to me. I advised him that I would be seizing his phone as I suspected there to be evidence of trafficking on it. He advised me that he needed his phone. I told him that we could have a look through it now and if there was anything on it we would have to seize it and if not he would be able to have it back. The phone was locked.[2] I have interpolated this sentence from another of DBS Napper’s statement.
Decision
Reasons for decision
Finally, whilst I accept that there can be a fine line between a question asked at the accusatory stage, and embarking upon an interview, or conversation,[128] invoking the requirements of s 74D of the Summary Offences Act, I do not think that matters had progressed to the stage where an audio visual or audio recording of the initial conversation was required.[129] It was not suggested at trial or on appeal that evidence of what the accused said to police was inadmissible having regard to s 74E of the Summary Offences Act.[128] Under s 74C of the Summary Offences Act an 'interview' is defined to include a conversation, a part of a conversation or a series of conversations.[129] See the recent decision of this Court in Steen v The Queen [2020] SASCFC 60 where the Court divided on whether the legislative requirements for recording an interview were triggered.Conclusion I agree that the appeal should be dismissed. BLEBY J: I agree that the appeal should be dismissed. I gratefully adopt the summary by the Chief Justice of the facts and applicable legal principles. I do not consider it necessary to reach a view as to whether Ghani v Jones[130] should be treated as authoritative in Australia. I respectfully regard the analysis by Livesey J of the historical common law power of retention, and the role of that power as an incident to the power conferred by s 68(1) of the Summary Offences Act 1953 (SA), as persuasive. However, I agree with the Chief Justice that in this case, the search and seizure of the phone were authorised by s 67 of the Summary Offences Act. In my view, that conclusion is dispositive of the question whether Sergeant Napper was empowered to seize the phone.[130] [1970] 1 QB 693. The Chief Justice has explained the authorities that describe the two phases of a police investigation. Several of these authorities express the consequence of having reached the accusatory stage being that this ‘marks a point at which a caution must be given’.[131] Thus, in Van der Meer v The Queen, Mason CJ said:[132]I do not doubt that in some situations the police, though believing a suspect to be guilty of the crime, wish to ascertain whether he has an answer to the suggested case against him, before making a definitive decision to charge him. But, recognition of the right to silence and considerations of fairness to the suspect demand that, in these situations, the police should issue a caution and that they should not whittle down the effect of the caution by pressuring or cajoling the suspect into speaking once he has clearly indicated his wish to remain silent. Whether the suspect wishes to take advantage of the opportunity given to him is a matter for him to decide.[131] R v Murphy (1996) 66 SASR 406 at 412 (Doyle CJ, Olsson and Perry JJ agreeing).[132] Van der Meer v The Queen (1988) 62 ALJR 656 at 661 (Mason CJ). Similarly, in R v Dolan, King CJ said:[133]It seems to me, however, that where a police officer has reached a stage in his investigations at which he has reasonable grounds for suspecting a particular person, he ought not to interrogate that person without advising him of his right not to answer questions. This is particularly so, where the police officer is about to embark upon a systematic interview issuing in a typed record of interview or audio or audiovisual tape.[133] R v Dolan (1992) 58 SASR 501 at 505 (King CJ).