Middlin-Hannah v The Queen

[2020] SASCFC 112

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

MIDDLIN-HANNAH v THE QUEEN

[2020] SASCFC 112

Judgment of The Court of Criminal Appeal

(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.

2. This Court should not recognise an extension of the law along the lines of Ghani v Jones [1970] 1 QB 693.

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 mobile phone was authorised by s 67 of the Summary Offences Act 1953 (SA).

2.    The appeal is dismissed.

An Act to amend the Police Act 1916; Controlled Substances Act 1984 (SA) ss 32, 52; Criminal Law Consolidation Act 1935 (SA) s 243; Larceny Act 1916 (UK) s 42; Metropolitan Police Act 1839 (UK) s 66; Ordinance for Regulating the Police in South Australia 1844  (SA); Police Act 1863 (SA) ss 43, 46, 86; Police Act 1869 (SA) s 99; Police Act 1916 (SA) ss 42, 44, 55A, 105; Police Act 1936 (SA) ; Police Amendment Act 1921 (SA) s 42; Police Act Further Amendment Act 1913 (SA) ss 2,3; Police Offences Act 1953-1975 (SA); Summary Offences Act 1953 (SA) ss 67, 68, 81, referred to.
Chic Fashions (West Wales) Ltd v Jones [1968] 2 QB 299; Crozier v Cundey (1827) 6 B. & C. 232; Dillon v O'Brien and Davis (1887) 16 Cox CC 245; Elias v Pasmore [1934] 2 KB 164; Entick v Carrington (1765) 2 Wils 275; Ghani v Jones [1970] 1 QB 693; Pringle v Bremner and Stirling (1867) 5 Macph 55, HL(SC); R v Bueti (1997) 70 SASR 370; R v Dolan (1992) 58 SASR 501; R v Lushington, ex parte Otto [1894] 1 QB 420; R v Middlin-Hannah [2020] SADC 31; R v Murphy (1996) 66 SASR 406; Reg v Frost (1839) 9 C. & P. 129; Rex v Barnett (1829) 3 C. & P. 600; Smethurst v Commissioner of the Australia Federal Police (2020) 94 ALJR 502; Van Der Meer v The Queen (1988) 62 ALJR 656, discussed.
Bunning v Cross (1978) 141 CLR 64; Challenge Plastics v Cutoms (1993) 42 FCR 397; Cleland v The Queen (1982) 151 CLR 1; Collins v The Queen (1980) 31 ALR 257; Director of Public Prosecutions v Tamcelik (2012) 224 A Crim R 350; Director of Public Prosecutions v Tupper (2018) 55 VR 720; Field v Sullivan [1923] VLR 70; G.H. Photography Pty Ltd v McGarrigle [1974] 2 NSWLR 635; Greer v Commissioner of New South Wales Police (2002) 128 A Crim R 586; Lam Chi-Ming v R [1991] 2 AC 212; Levine v O'Keefe [1930] VLR 70; McElroy v The Queen (2018) 55 VR 450; Northern Territory of Australia v Mengel (1955) 185 CLR 307; Police v Hall (2006) 95 SASR 482; Police v Moukachar (2010) 107 SASR 450; Pollard v The Queen (1992) 176 CLR 177; R v Romeo (1982) 30 SASR 243; R v Waterfield [1964] 1 QB 164; Ridgeway v The Queen (1995) 184 CLR 19; Semayne's Case (1604) 5 Co. Rep. 91a; Siddique v Martin (2016) 51 VR 564, considered.

MIDDLIN-HANNAH v THE QUEEN
[2020] SASCFC 112

Court of Criminal Appeal:       Kourakis CJ, Livesey and Bleby JJ

1. KOURAKIS CJ: This is an appeal against convictions entered on two counts of trafficking in a controlled drug contrary to s 32(3) of the Controlled Substances Act 1984 (SA) (the CSA). The appellant, Mr Middlin-Hannah, appeals against the failure of a judge of the District Court (the Judge) to exclude the evidence of text messages recorded his mobile telephone (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 but, because no drug was found, could find no more than that the drug was ‘highly likely to have been MDMA’.[1]

   [1]    R v Middlin-Hannah [2020] SADC 31 [141].

2. Mr Middlin-Hannah’s smartphone was seized by Detective Brevet Sergeant Napper (DBS Napper) from a bag in the changerooms of a football ground where he was training. DBS Napper was the holder of a general search warrant issued pursuant to s 67 of the Summary Offences Act 1953 (SA) (the SOA) authorising the search of premises and the seizure of, amongst other things, items which may afford evidence of offending. The evidence left the Judge in some uncertainty as to the power which was exercised to seize the smartphone because the primary contentions of the prosecution were that DBS Napper was exercising a power to search the person conferred by s 52(6) of the CSA or by s 68 of the SOA. Mr Middlin‑Hannah gave DBS Napper the personal identification number (PIN) of his smartphone when he was presented with the choice of losing the use of it whilst it was forensically examined or allowing police to look through it on the spot. DBS Napper told Mr Middlin-Hannah that if there was any evidentiary material on the smartphone he would seize it. After another officer viewed messages on the smartphone, and formed the belief that some were indicative of drug trafficking, DBS Napper retained the smartphone.

3. The Judge declined to exclude the evidence because he found that the balance of discretionary considerations were against doing so, without finally concluding whether the search and seizure was authorised by s 68 of the SOA.

4. The appellant appeals against the decision not to exclude the text messages on the grounds that:

   1DBS Napper had no authority to seize the smartphone at all, and that the illegality of that seizure required the exclusion of the evidence of the text messages. 

   2The Judge’s decision not to exclude the messages on the balance of discretionary consideration is vitiated by his failure to make a finding, one way or another, on the legality of the seizure of the smartphone.

   3DBS Napper acted improperly in representing to Mr Middlin-Hannah that a seizure of the smartphone was lawful and, in that way, obtaining the PIN which allowed the messages to be viewed.

5. 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

6. 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.  

7. 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.

8. 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.

9. 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.

10. 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.

11. 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.

12. DBS Napper gave the following evidence about how he came to seize the mobile telephone:

    Q.So what was the next thing that occurred after the search of the vehicle.

    A.I asked Brad if he could give me his mobile telephone.

    Q.Can you use the exact words that you used at the time.

    A.Probably can't give you the exact words but words along the lines of 'Do you have your phone? Can you please pass it, or 'Can you please get it for me?'

    Q.And when you were saying those words, what power did you understand or what authority did you understand you were using to ask those or to make those statements to Brad Middlin-Hannah.

    A.I understood that I was using s.52 part 2 of the Controlled Substances Act, in particular the direction for him to hand over items, a reasonable direction, that he may have on him or with him.

    …

    Q.What was the response from Mr Middlin-Hannah.

    A.He advised me that the phone was in the change rooms in his bag.

    Q.Did you say anything in reply to that.

    A.I asked him if he could go retrieve the phone.

    Q.What's your understanding of s.52(2) of the Controlled Substances Act.

    A.Part - I think it’s part G or H, at the end of the - end of 52(2), I understood that to be that you could reasonably direct someone to hand over items as part of the search.

    HIS HONOUR

    Q.Search of.

    A.Of the person.

    MR CANNELL

    Q.When you say ‘search’, ‘as part of the search of the person’, so that’s your evidence, that your understanding is that you had power to direct Mr Middlin‑Hannah to go get his phone as part of a search of the person.

    A.Yes.

    Q.So your understanding, it’s a direction.

    A.Yes, yep.

    Q.Did Mr Middlin-Hannah then go and get the phone.

    A.Yes.

    Q.What's occurred after that.

    A.After he’s gone to get the phone, he’s handed it to me and I explained to him that it was my intention to seize that phone as I believed there may have been evidence on it in relation to trafficking of a controlled substance and he advised me that he needed the phone.

    Q.Just to go back, when you’ve asked him to go and get the phone, has he said anything in response.

    A.I can’t recall if he questioned it.

    Q.After you’ve said to him you were going to seize the phone for the reasons you’ve given, what’s occurred next.

    A.He said that he needed his phone and I said that because I believe - had a belief that there was evidence on it that we were going to get that examined, send it in for analysis to see the contents of the phone and I advised or I told him that if there wasn’t anything on the phone, then he would be able to get that back and there was a lock on the phone so I asked him for the pin code for it. And I said that if I had a look through the phone and there was nothing on there that I needed or that I would seize for evidence, then he could have the phone back but if there was, then I would need to retain that as evidence.

    Q.What was Mr Middlin-Hannah’s response to that.

    A.He gave the pin code to his phone.

13. In cross-examination, DBS Napper testified:

    Q.When you directed Middlin-Hannah to obtain his phone, you weren’t giving him a choice, were you.

    A.I didn’t give him a choice but he would have had a choice to make, I didn’t say he had to give me the phone, I asked him for the phone but he - yeah.

    …

    Q.I just want to break this down and get the sequence of events correct. You have finished searching the motor vehicle.

    A.Yes.

    Q.Then you have decided at that point to search Mr Middlin-Hannah’s person.

    A.Yes.

    Q.And did you, indeed, search his person, by asking him to empty his pockets.

    A.I could see that he had his footy clothes on, so he didn’t have any pockets in his shorts and guernsey, so no, I didn’t physically search his person.

    Q.So it was never your intention to search his person then.

    A.My understanding is a search of a person includes property of, or items within his control. So his bag, which in this instance was in the changerooms, which I had asked him to come out of in the first place.

14. The Judge accepted the evidence of DBS Napper.

15. Mr Middlin‑Hannah was interviewed by DBS Napper after his smartphone was seized.  DBS Napper cautioned him that he was not obliged to answer any questions.  Mr Middlin-Hannah told DBS Napper that the cocaine found at his home was for his personal use.  Mr Middlin‑Hannah told police that $3,900 of the cash found in his wardrobe was the proceeds of a tax refund which he had withdrawn from his bank account.  He declined to comment on the source of the remainder of the money.  Whilst that interview was conducted another police officer looked through the smartphone.  Mr Middlin‑Hannah was told that because some messages were suggestive of drug trafficking the smartphone would be retained.  Mr Middlin‑Hannah was arrested just over a week later.

    Legislation

16. Section 52(6) of the CSA provides:

    (6)An authorised officer who is a police officer may search any person whom the officer reasonably suspects has in his or her possession any substance or equipment in contravention of this Act.

17. Section 52(6) of the CSA may be immediately put aside, even though DBS Napper purported to rely on it. The smartphone was, obviously enough, not a substance or equipment possessed by Mr Middlin-Hannah in contravention of the CSA. It is largely irrelevant that DBS Napper thought he was authorised to seize the smartphone pursuant to that power if he was, as a matter of law, authorised to do so under another power.[3]   Of course, if DBS Napper was not authorised by any law to seize the smartphone, his mistake about that, and indeed his generally confused conception of the powers available to him, may well have been a relevant factor in the exercise of the discretion to exclude the evidence of the text messages. 

    [3]    R v Romeo (1982) 30 SASR 243 at 277 (Cox J).

18. Section 67 of the SOA provides:

    67—General search warrants

    (1)Despite any law or custom to the contrary, the Commissioner may issue general search warrants to such police officers as the Commissioner thinks fit.

    …

    (4)The police officer named in any such warrant may, at any time of the day or night, exercise all or any of the following powers:

    (a)     the officer may, with such assistants as he or she thinks necessary, enter into, break open and search any house, building, premises or place where he or she has reasonable cause to suspect that—

    (i)an offence has been recently committed, or is about to be committed; or

    (ii)there are stolen goods; or

    (iii)there is anything that may afford evidence as to the commission of an offence; or

    (iv)there is anything that may be intended to be used for the purpose of committing an offence;

    (b)     the officer may break open and search any cupboards, drawers, chests, trunks, boxes, packages or other things, whether fixtures or not, in which he or she has reasonable cause to suspect that—

    (i)there are stolen goods; or

    (ii)there is anything that may afford evidence as to the commission of an offence; or

    (iii)there is anything that may be intended to be used for the purpose of committing an offence;

    (c)     the officer may seize any such goods or things to be dealt with according to law.

19. I make the following general observations. First, the power conferred by s 67(4) of the SOA vests in a person named in a general search warrant issued by the Commissioner with respect to those premises and storage vessels he or she has reasonable cause to suspect satisfy the prescribed conditions. The power is not subject to any additional condition concerning the warrant holder’s state of mind over and above holding the prescribed suspicion. In particular, there is no need to advert to, or announce, the exercise of the power s 67 of the SOA confers on holders of a general search warrant. The powers are conferred to facilitate the enforcement of the criminal law, and thereby the protection of the community, and are not dependent on the legal learning of the police officers on which they are conferred.

1. Secondly, subparagraphs (iii) of subs 4(a) and (b) are not limited to things which are, in themselves, evidence of offences, but extend to things which may ‘afford evidence as to the commission of an offence.’

2. Thirdly, the examination of an object in order to discover evidence is, as we shall see, authorised by the common law. 

3. Fourthly, but only because it is relevant to my discussion below of s 68 of the SOA, the express power to seize items conferred by s 67(4)(c) should be noted. The predecessor to s 67 of the SOA first appeared as s 3 of the Police Act Further Amendment Act 1913 (SA) (the 1913 Amendment Act), but did not include an express power to seize items.  Section 3 was enacted against the context of a series of eighteenth and nineteenth century decisions which held that no warrant could validly be issued, by executive authority alone, to enter or break into private premises and search them for relevant material.  The general search warrant provision was re‑enacted as s 42 of the Police Act 1916 (SA), but again, without an express power to seize.  Only in 1921 did the Police Act Amendment Act 1921 (SA) (the 1921 Amendment Act) expressly add that power to s 42 of the Police Act 1916 (SA).  That amendment also expanded the items which fell within the scope of general search warrants to include anything which may afford evidence of the commission of an offence.

4. Section 67 therefore effected a significant expansion of the common law powers of police officers in a number of respects. However, it should also be noted that the stipulated purpose for the seizure, ‘to be dealt with according to law’, necessarily assumes a common law power to use evidentiary material for forensic purposes.

5. The preservation of evidence so that it may be presented to a court on a trial of a criminal offence remains a paramount public interest.[4] 

   [4] That public interest is recognised by s 243 of the Criminal Law Consolidation Act 1935 (SA) which makes it an offence to alter, conceal or destroy anything that may be required in evidence or judicial proceedings with the intention of influencing the outcome of those proceedings.

6. Section 68 of the SOA provides:

   68—Power to search suspected vehicles, vessels, and persons

   (1)A police officer may do any or all of the following things, namely, stop, search and detain—

   (a)     a vehicle or vessel in or upon which there is reasonable cause to suspect that—

   (i)there are stolen goods; or

   (ii)there is an object, possession of which constitutes an offence; or

   (iii)there is evidence of the commission of an indictable offence;

   (b)     a person who is reasonably suspected of having, on or about his or her person—

   (i)stolen goods; or

   (ii)an object, possession of which constitutes an offence; or

   (iii)evidence of the commission of an indictable offence.

   (2)In this section—

   stolen goods includes goods obtained by the commission of an offence.

7. Section 68 is the successor to a line of statutory provisions dating back to the nineteenth century in England and South Australia, which were calculated to enhance the efficacy of the powers exercisable by police officers at common law, or under statute, to arrest without warrant and to seize items which had been stolen, or used to commit offences, or which had evidentiary value. The power to stop a vehicle, vessel or person was conferred to facilitate the exercise of those powers; it is difficult to conduct a search on the go. Once detained, a vehicle, vessel or person search can be conducted and, if appropriate, a person in or on it may be arrested. On that arrest, the common law empowered the arresting officer to seize items on the arrested person which the officer reasonably believed might provide evidence of the offence for which the person was arrested. It is necessary to consider the historical emergence of that common law power in order to consider Mr Middlin‑Hannah’s submission that the power conferred by s 68 of the SOA does not include a power to seize the items found.

8. In Chic Fashions (West Wales) Ltd v Jones[5] (Chic Fashions), Lord Denning observed that ‘English Law has always had a great regard for the integrity of a man’s home’ and recalled Sir Edward Coke’s aphorism that ‘every man’s house is his castle’.[6]  The only exception known to the common law was the power of a magistrate[7] to issue a search warrant to enter a home and seize stolen goods.  In Entick v Carrington,[8] it was held that the power of a magistrate to issue such a warrant did not extend to searching for counterfeit coins, forged banknotes or seditious papers.[9] 

   [5] [1968] 2 QB 299.

   [6]    Semayne’s Case (1604) 5 Co. Rep. 91a.

   [7]    That old office should not be confused with the judicial office of magistrates under the Magistrates Act.

   [8] (1765) 2 Wils 275.

   [9]    Chic Fashions (West Wales) Ltd v Jones [1968] 2 QB 299 at 307-308 (Lord Denning MR).

9. In Chic Fashions, Lord Denning observed that Sir Edward Coke had denied the lawfulness of even the warrants issued by magistrates for stolen goods, but that the common law came to accept their validity so that ‘No man’s house is … used as a hiding place for thieves or a receptacle for stolen goods’.[10]  However, the common law initially took the strict view that, if no stolen goods were found, the officers were trespassers from first entry, notwithstanding the reasonableness of their suspicion. 

   [10] Chic Fashions (West Wales) Ltd v Jones [1968] 2 QB 299 at 308 (Lord Denning MR).

10. The seizure authorised by a common law warrant to search for and seize stolen goods was extended in Crozier v Cundey[11] (Crozier) to include packages or boxes in which the suspected goods were found, if that packaging was likely to furnish evidence of the identity of the goods.  The Court in Crozier dismissed a civil claim for taking and detaining the boxes.  That decision is an early foundation for the principle laid down in Chic Fashions and in Ghani v Jones,[12] namely that the common law authorises police to seize and deal with items lawfully discovered which may afford evidence of an offence.  The Court in Crozier also dismissed a claim in trespass to land, even though the police officer had wrongly seized other items not mentioned in the warrant.  In so holding, the decision in Crozier effectively abrogated the old principle of trespass ab initio, which rendered entry, permitted conditionally, a trespass from the outset if a condition was breached. 

    [11] (1827) 6 B. & C. 232.

    [12] [1970] 1 QB 693.

11. The 1867 decision of Pringle v Bremner and Stirling[13] considered the powers exercisable under a lawfully issued search warrant which authorised a constable to search a house for a piece of fuse used in making an explosive.  The question which arose was whether the seizure of certain letters, which afforded evidence of the identity of the offenders responsible for the explosion, constituted a civil tort.  Lord Chelmsford LC held that conduct, which over‑reached the authority of the warrant but which procured evidence of the commission of an offence, may be excused by the common law.  The decision is another example of the common law’s recognition that property rights in goods may be subordinated to the higher public interest in the administration of the criminal law. 

    [13] (1867) 5 Macph 55, HL(Sc).

12. However, there was, up to that time, no decision expressly affirming the right of a police officer to seize and retain items which may afford evidence of the commission of an offence from an arrested person.  That decision came in 1887.  The decision of the Exchequer Division of the High Court (Ireland) in Dillon v O’Brien and Davis[14] (Dillon) provides important context for the proper construction of the early statutory provisions conferring powers of arrest, search and seizure on police officers.

    [14] (1887) 16 Cox CC 245.

13. The plaintiff, John Dillon, was a Member of Parliament.  He was arrested on a warrant which authorised his arrest, but not any search, on a charge alleging a common law conspiracy in connection with a proscribed Agrarian movement known as the ‘Plan of Campaign’, which opposed the high rents demanded by absentee landlords of their Irish tenants.[15]  Mr Dillon brought an action against inspectors of the Galway constabulary for the seizure and detention of banknotes, coins and documents at the time of his arrest.  The defence filed by the police pleaded positively that Mr Dillon had committed the offence for which he was arrested.  The decision of the Court was given on a demurrer brought by Mr Dillon, and therefore was decided on the premise that he had committed the offences.[16]  Mr Dillon contended that there was no authority at common law to seize any property in the possession of a person arrested for an offence, whether guilty or not.  For the constables, it was argued that the police could ‘seize, with the accused person, property which might be required as instruments of proof at his trial.’  They relied on what they submitted was a long-established practice to that effect. 

    [15] See ‘A Tale of Three Dillons 1916-1986 - Ballagh Gala Reunion 1998’, Lough Gara Lakes & Legends The premise of the demurrer was falsified when Dillon was acquitted, but some years later he was convicted of a similar conspiracy.  On his release from prison Dillon toured Australia raising substantial funds in aid of the Irish Nationalist cause and Irish Agrarian Reform; see ‘A Tale of Three Dillons 1916-1986 - Ballagh Gala Reunion 1998’, Lough Gara Lakes & Legends >

    Palles CB, giving the judgment of the Court, noted the undesirable consequences of the absence of such a power.  He gave, as examples, the obvious public detriment if police could not seize the poison found on a person charged with murder, or the letters of treasonous co‑conspirators.  He declared that that mischief, and the longstanding practice, were reason enough to hold against the plaintiff.  However, Palles CB also relied on three authorities in which the power had been assumed: Crozier v Cundy;[17] Rex v Barnett[18] (Barnett), Reg v Frost[19] (Frost).

    [17] (1827) 6 B. & C. 232.

    [18] (1829) 3 C. & P. 600.

    [19] (1839) 9 C. & P. 129.

14. I have discussed Crozier v Cundy in [29] above.  In Barnett, the defendant’s application on his trial for the return of money taken from him on his arrest was granted because there was no suggestion that it was to be put into evidence.  In Frost, again in response to a defendant’s application that money taken from him be returned, Tindall CJ sought an assurance that the money formed no part of any proof, before making the order. 

15. Palles CB distinguished the decision in Entick v Carrington[20] because that case was confined to the legality and powers under a search warrant, and there was no arrest nor any reasonable or probable cause to believe Mr Entick guilty of an offence. 

    [20] (1765) 2 Wils 275.

16. Palles CB identified the following underlying principle:[21]

    To what then is it to be referred?  Its purpose and object, viz., to produce the goods in evidence in a judicial proceeding, appears to me to show that it must be derived from the interest which the State has in a person guilty (or reasonably believed to be guilty) of a crime being brought to justice, and in a prosecution, once commenced, being determined in due course of law.  On the existence of this interest in the State, many of the most important principles of our jurisprudence depend.  … It is this, too, which prevents even a malicious prosecution against an innocent person constituting a cause of action, if there be reasonable and probable cause for its institution.  … But the interest of the State in the person charged being brought to trial in due course necessarily extends, as well to the preservation of material evidence of his guilt or innocence, as to his custody for the purpose of trial.  His custody is of no value if the law is powerless to prevent the abstraction or destruction of this evidence, without which a trial would be no more than an empty form.  But if there be a right to production or preservation of this evidence, I cannot see how it can be enforced otherwise than by capture.  If material evidences of crime are in the possession of a third party, production can be enforced by the Crown, by subpoena duces tecum.  But no such writ can be effective in the case of the person charged.  It appears to me to be clear that this must be the origin of the right in felony; and that, being derived from the common law, it ought, primâ facie at least, to be deemed to exist in all cases in which that interest of the State exists, and cannot (at least without express authority) be so confined as to be inapplicable in cases of custodies of such value in the eyes of the law to justify, for their preservation, the taking of life.  …

    (Underlining added)

    [21] (1887) 16 Cox CC 245 at 249-250.

17. The first two of the underlined sentences state the common law’s recognition of the power to seize evidentiary items in the possession of a person charged with an offence in order to serve the public interest in the enforcement of the criminal law.  That rationale for the rule is not anchored in, or ancillary to, any legislative conferral of power.  The last two of the underlined sentences show that the power was limited to items in the possession of the person arrested, and did not extend to a third party, in respect of whom the prosecution was left to rely on the compulsory processes of the court in which the charge was brought.

18. In Elias v Pasmore,[22] Horridge J held that the warrant authorising the arrest of a man for making a seditious speech authorised the seizure of items affording evidence of his guilt, and the guilt of others, found in the headquarters of the movement in which he was arrested. 

    [22] [1934] 2 KB 164.

19. The predecessors to ss 67 and 68 of the SOA are to be found in nineteenth century English legislation and South Australian ordinances made before the establishment of representative government. In both South Australia and England, the legislative provisions followed upon, and were intended to arm, recently established police forces with effective powers to enforce the criminal law. Section 66 of the Metropolitan Police Act 1839 (UK) authorised constables to take into custody persons found committing certain offences without a warrant, but conferred two further statutory powers relevant to the issues arising on this appeal.  First, a constable was authorised to detain and search any vessel, boat, cart, carriage or person upon which, or whom, there was reason to suspect that there may be stolen or unlawfully obtained goods.  The second power was conferred on any person, to whom property reasonably suspected of being stolen was offered for sale, to apprehend and detain the person offering the property, together with that property, and to deliver both to a police constable. 

20. The South Australian equivalent of s 66 of the Metropolitan Police Act 1839 (UK) was enacted as s 10 of the Ordinance for Regulating the Police in South Australia 1844 (SA) (the Police Ordinance). 

21. The Director contends that the absence, in both provisions, of a power to seize the stolen goods is to be explained by an implicit acceptance that constables had a common law, or incidental statutory, power to do so, whereas private individuals did not.  In support of that proposition, the Director relies on s 72 of the Police Ordinance, which also had a nineteenth century English counterpart.[23]  Section 72 of the Police Ordinance regulated the possession by constables of property they had seized ‘by virtue of any warrant of a Justice or in prosecution of any charge of felony or misdemeanour’.  It provided that at the conclusion of the trial of the person prosecuted, a magistrate could make orders for the delivery of the goods to the rightful owner.  The Director submits that it is implicit in s 72 of the Police Ordinance that police officers were empowered to hold any property suspected of being stolen or unlawfully obtained for the purposes of prosecuting a charge. 

    [23] UK 56 and 57 Victoria c. 71.

22. I would reject that submission.  On a textual construction, s 72 refers first to the common law search warrant for stolen goods and the seizure of property on initiating a prosecution by the arrest of a suspected thief.  It is doubtful that nineteenth century legislatures enacting provisions which subsequently added to common law enforcement powers, and therefore detracted from accepted ‘freedoms’, intended those powers to include a penumbra of incidental powers.  It is more likely that the additional powers would be spelt out.  The long‑established practice, authoritatively given a common law foundation in Dillon, explains why no such power was necessary in the case of an arrested person.

23. Moreover, the Court held in Dillon that the common law power to seize property, as of 1887, was limited to the property of the person charged, and did not extend to third persons.  There is every reason, therefore, not to add by implication to the power conferred by s 10 of the Police Ordinance, a power to seize the property of an innocent third person.

24. The most likely construction of the phrase ‘in prosecution of any charge of’ in s 72 of the Police Ordinance is that it refers to property seized from the person charged, on exercising the power of arrest conferred on police by s 10 of the Police Ordinance, of a person the officer suspects, or after a suspect has been delivered into the constable’s custody by a private person.[24]  Section 72 of the Police Ordinance made provision for dealing with the property seized on arrest according to the subsequent disposition of the criminal proceedings. 

    [24] Dillon v O’Brien and Davis (1887) 16 Cox CC 245.

25. Section 10 of the Police Ordinance was reproduced after the establishment of representative government as s 46 of the Police Act 1863 (SA). The power to arrest without warrant was located in s 43.  Section 72 of the Police Ordinance became s 86 of the Police Act 1863 (SA). The Police Act 1863 (SA) was re‑enacted and consolidated as the Police Act 1869 (SA).

26. I have earlier referred to the 1913 Amendment Act which introduced general search warrants.  The Director submits that because s 2 of the 1913 Amendment Act provided that it was to be incorporated with the Police Act 1869 (SA), the successor in that Act to s 72 of the Police Ordinance,[25] by implication, also conferred a power to seize items found in the execution of the general search warrant, just as it had for s 10 of the Police Ordinance. 

    [25] Police Act 1869 (SA) s 99.

27. I would reject that submission for the same reasons given with respect to s 10 of the Police Ordinance.  Holders of a general search warrant (as of 1913) could only seize stolen goods they found on conducting the search if they provided evidence against a person they arrested on finding those goods.  Moreover, if the power to seize were thought to be implicitly within the successor to s 10 of the Police Ordinance, and the powers exercisable on executing a general search warrant, irrespective of an arrest, it is difficult to explain the addition of the express power to seize by the 1921 Amendment Act, even though there had been an earlier consolidation by the Police Act 1916.

28. The Police Act 1916 (SA) consolidated amendments which had been made from time-to-time to the Police Act 1869 (SA) and repealed that Act. The power to issue general search warrants was re-enacted by s 42 of the Police Act 1916 (SA).  The power to arrest without warrant, and to stop, search and detain vehicles was enacted in s 44.  Provision for seized property after the trial of the offender was made in s 105.

29. As I have earlier observed, the powers exercisable by the holder of a general search warrant were expanded by the 1921 Amendment Act.  The amended s 42(4) also included the power to search premises in which the holder had reason to suspect an offence had recently been committed, or was about to be committed, and to search for anything which may afford evidence of the commission of an offence.  The power was extended expressly to include the breaking open of containers. 

1. In 1928, s 55A was added to the Police Act 1916.[26]  It authorised the search of a person in lawful custody upon a charge of offence and the taking of any property found upon him.  Section 55A codified and extended the common law power recognised in Dillon, and adopted English provisions[27] for basic forensic procedures like taking measurement and photographs of the arrested person.

   [26] Act number 1863. An Act to amend the Police Act 1916.

   [27] cf UK 40 & 41 Vict c.  21, s 42; 54 & 55 Vict c.  69, s 8.

2. Section 81 of the SOA now provides for the search of persons taken into custody, authorises the seizure of anything found on him or her and authorises, subject to safeguards, much more complex forensic examinations. 

3. The provisions as they stood in 1928 were included in the Police Act 1936 (SA) and the Police Offences Act 1953 – 1975 (SA).  Notably, a power has never been expressly conferred to seize items found in a vehicle, or on a person, following a search of the kind first authorised by s 10 of the Police Ordinance and now s 68 of the SOA.

4. The question which now arises is whether developments in the common law in the twentieth century have extended the powers of police to seize the product of a s 68 search, or whether s 68 of the SOA should be given a different construction to that of its early twentieth century predecessors, so as to include an incidental power to seize.

5. In Chic Fashions,[28] the English Court of Appeal considered the powers of police officers holding a warrant issued under s 42 of the Larceny Act 1916 (UK).  That section authorised a justice of the peace to issue a warrant to search premises, and seize, if found, the property specified in it, but was silent as to the power of police to seize other items suspected to be stolen.

   [28] [1968] 2 QB 299.

6. The Court of Appeal held that a police officer who entered premises pursuant to a warrant to search for particular stolen goods could seize not only those goods which he or she reasonably believed to fall within the warrant, but also other goods which he or she believed on reasonable grounds to have been stolen and to be material evidence on a charge of stealing.  The Court of Appeal accordingly overturned a judgment in favour of the proprietors of a clothing store from which police had seized clothing which they reasonably believed to have been stolen, but which were not covered by the search warrant which authorised their entry into the premises. 

7. In Chic Fashions, Lord Denning rationalised the other authorities as follows:[29]

   Such are the cases. They contain no broad statement of principle: but proceed, in our English fashion, from case to case until the principle emerges. Now the time has come when we must endeavour to state it. We have to consider, on the one hand. the freedom of the individual. The security of his home is not to be broken except for the most compelling reason. On the other hand, we have to consider the interest of society at large in finding out wrongdoers and repressing crime. In these present times, with the ever‑increasing wickedness there is about, honest citizens must help the police and not hinder them in their efforts to track down criminals. I look at it in this way: So far as a man's individual liberty is concerned, the law is settled concerning powers of arrest. A constable may arrest him and deprive him of his liberty, if he has reasonable grounds for believing that a felony (now an “arrest-able offence”) has been committed and that he is the man. I see no reason why goods should be more sacred than persons. In my opinion, when a constable enters a house by virtue of a search warrant for stolen goods, he may seize not only the goods which he reasonably believes to be covered by the warrant, but also any other goods which he believes on reasonable grounds to have been stolen and to be material evidence on a charge of stealing or receiving against the person in possession of them or anyone associated with him. Test it this way: Suppose the constable does not find the goods mentioned in the warrant but finds other goods which he reasonably believes to be stolen. Is he to quit the premises and go back to the magistrate and ask for another search warrant to cover these other goods? If he went away, I should imagine that in nine cases out of ten, by the time he came back with a warrant, these other goods would have disappeared. The true owner would not recover them. The evidence of the crime would have been lost. That would be to favour thieves and to discourage honest men. Even if it should turn out that the constable was mistaken and that the other goods were not stolen goods at all, nevertheless so long as he acted reasonably and did not retain them longer than necessary, he is protected. The lawfulness of his conduct must be judged at the time and not by what happens afterwards. I know that at one time a man could be made a trespasser ab initio by the doctrine of relation back. But that is no longer true. The Six Carpenters’ Case was a by-product of the old forms of action. Now that they are buried, it can be interred with their bones.

   (Citation omitted)

   [29] [1968] 2 QB 299 at 312-313.

8. Lord Diplock stated the law in similar terms:[30]

   Today, unlike the time of Entick v. Carrington, Price v. Messenger and Crozier v. Cundey, there are throughout the country regular police forces whose officers are charged with the duty of preventing and detecting crime. The common law has always recognised that the discharge of this duty may justify some interference with rights of innocent private citizens which would in other circumstances be entitled to its protection. At common law a constable, even before there were regular police forces, was entitled to arrest a person whom he had reasonable grounds for believing to have committed a serious crime (felony). At the time of the arrest the arrestor cannot know that the arrested person is guilty. The purpose of the arrest is to bring him before a court so that this issue may be tried. The justification of the arrest does not depend upon the result of the subsequent trial. The reasonable belief of the arrestor at the time of the arrest was a good defence to an action of false imprisonment notwithstanding that it ultimately proved to be unfounded. The balance between the inviolability of personal liberty and the pursuit of public weal in this case came down upon the side of him who acted reasonably in intended performance of what rightminded men would deem a duty to their fellow men; the prevention and detection of crime.

   It may be that well into the nineteenth century when arrest upon mesne process and imprisonment for debt formed part of the ordinary procedure of the courts, the protection of private property weighed heavier in the scale of social values than the preservation of human liberty. Some of the language in Entick v. Carrington might so suggest. But such is not the case today, and unless forced to do so by recent binding authority, I decline to accept that a police officer who is unquestionably justified at common law in arresting a person whom he has reasonable grounds to believe is guilty of receiving stolen goods, is not likewise justified in the less draconian act of seizing what he, on reasonable grounds, believes to be the stolen goods in that person's possession. The purpose of the seizure in such a case is twofold: first, that the goods may be produced as material evidence upon the prosecution of a criminal charge against the person from whom they were seized, and, secondly, that after the trial they may be restored to their rightful owner; and a similar justification exists for their detention so long as the detainor has reasonable grounds for believing that such a charge will lie and that the goods will be material evidence upon its prosecution. I leave aside the question, which does not arise in the present case, of what constitutes sufficient justification for the seizure and detention if the contemplated charge is not against the person in whose possession the goods were at the time of seizure.

   (Citations omitted)

   [30] [1968] 2 QB 299 at 316-317.

9. The position in Chic Fashions may be distilled to the propositions that the police officers’ presence on the premises was authorised by the warrant, and that the common law authorised police officers to seize evidentiary items of any offence which they lawfully came across.  The common law power to seize evidence was extended beyond evidence of the offence specified in a, common law or statutory, search warrant or on arrest, again whether authorised by the common law or statute.

10. In Ghani v Jones,[31] the English Court of Appeal heard an application for a mandatory injunction for the return of passports seized from the home of Pakistani citizens in England in the course of a murder investigation into the disappearance of the daughter-in-law of the male occupant.  The search was conducted without a warrant, because there was, at that time, no power to issue a search warrant for murder.  The police claimed that they entered the plaintiffs’ premises with their consent and that the passports were voluntarily handed over to them.  Lord Denning doubted that consent was freely given.  However, the plaintiffs’ claim was one in detinue only and the relief they sought was a mandatory injunction for the return of their passports.  In issue, therefore, was only the right to retain the documents.  The police claimed that the passports were, in themselves, of evidentiary value, but their reasons for so claiming were speculative.  The police also made the novel claim that they were entitled to retain the passports to prevent the plaintiffs from leaving England because they wanted their help with their enquiries. 

    [31] [1970] 1 QB 693.

11. The Court upheld the decision of the trial Judge that the passports be returned. 

12. Lord Denning commenced by noting the holding in Chic Fashions that police officers executing a warrant to search or arrest for one offence may also seize other items which come to their attention and which they reasonably believe evidence the commission of another offence.  Lord Denning also considered the cases which had considered the extent of police powers when not acting pursuant to a warrant or effecting an arrest.  Lord Denning then stated the following propositions as to the police power to seize articles which police had lawfully discovered:[32]

    What is the principle underlying these instances?  We have to consider, on the one hand, the freedom on the individual.  His privacy and his possessions are not to be invaded except for the most compelling reasons.  On the other hand, we have to consider the interest of society at large in finding out wrongdoers and repressing crime.  Honest citizens should help the police and not hinder them in their efforts to track down criminals.  Balancing these interests, I should have thought that, in order to justify the taking of an article, when no man has been arrested or charged, these requisites must be satisfied:

    First:  The police officers must have reasonable grounds for believing that a serious offence has been committed—so serious that it is of the first importance that the offenders should be caught and brought to justice.

    Second:  The police officers must have reasonable grounds for believing that the article in question is either the fruit of the crime (as in the case of stolen goods) or is the instrument by which the crime was committed (as in the case of the axe used by the murderer) or is material evidence to prove the commission of the crime (as in the case of the car used by a bank raider or the saucer used by a train robber).

    Third:  The police officers must have reasonable grounds to believe that the person in possession of it has himself committed the crime, or is implicated in it, or is accessory to it, or at any rate his refusal must be quite unreasonable.

    Fourth:  The police must not keep the article, nor prevent its removal, for any longer than is reasonably necessary to complete their investigations or preserve it for evidence.   If a copy will suffice, it should be made and the original returned.  As soon as the case is over, or it is decided not to go on with it, the article should be returned.

    Finally:  The lawfulness of the conduct of the police must be judged at the time, and not by what happens afterwards.

    [32] [1970] 1 QB 693 at 708-709.

13. The third proposition is of most relevance to the present issue.  It extends the holding in Dillon, beyond a person arrested, to any person implicated in the offending, or whose refusal is unreasonable.

14. Doubts have, on occasion, been expressed on the correctness of the decision in Ghani v Jones on the grounds that it was, a now unjustified, reaction to the surprising slowness of the legislature to provide police with the statutory powers required in contemporary contexts.[33]  However, it remains authoritative and has been followed many times in Australia.[34] It is soundly based on the long recognised high public interest in the enforcement of the criminal law. The power to seize items reasonably believed to be of evidentiary value, and to retain them for so long as it is reasonably necessary for a police investigation and prosecution, should generally be recognised. It is enlivened whenever police lawfully discover such items, whether pursuant to a power like that conferred by s 68 of the SOA, when invited onto residential or commercial premises or otherwise seen in public places. It will also apply to apparently lost or misplaced items found or delivered to police, even when it is possible to ascertain the owner. It is, of course, open to the legislature to abrogate the power expressly or by codifying police powers.[35]  That is not this case.

    [33] Challenge Plastics v Customs (1993) 42 FCR 397 at 404-406 (Heerey J).

    [34] See, eg Goldberg v Brown (2003) 38 MVR 389 at [13] (Osborn J); Greer v Commissioner of New South Wales Police (2002) 128 A Crim R 586; Tye v Commissioner of Police (1995) 84 A Crim R 147; Wright v Queensland Police Service [2002] 2 Qd R 667; Esso Australia Ltd v Curran (1989) 39 A Crim R 157; G.H. Photography Pty Ltd v McGarrigle [1974] 2 NSWLR 635; Cassaniti v Croucher (1997) 37 ATR 269; Rowell v Larter (1986) 6 NSWLR 21; R v Elomar (No 11) [2009] NSWSC 385; R v Tang (2007) 250 LSJS 99; McElroy v The Queen (2018) 55 VR 450; Siddique v Martin (2016) 51 VR 564; Chief Executive Administering the Environmental Protection Act 1994 (Qld) v Linc Energy Ltd (2015) 256 A Crim R 1.

    [35] Challenge Plastics v Customs (1993) 42 FCR 397; Director of Public Prosecutions v Tamcelik (2012) 224 A Crim R 350.

15. If the vehicle, vessel or person is on private premises, police must resort to the power conferred by s 67 of the SOA. The power to stop and search in s 68 of the SOA facilitates the finding of any of the prescribed items by a police officer who, on discovering them, again has a common law power to seize them for the purposes of evidence. The absence of an equivalent to s 67(4)(c) may be attributable either to a perceived distinction between police searches conducted on private property and searches conduct in public places, or the drafter’s, and Parliament’s, view that subparagraph (c) is surplusage because of the existence of the common law power, or both.

16. If s 68 of the SOA, properly construed, does not authorise the seizure of property found falling within its terms, then unless in a position to make an arrest, police would be impotent to do anything other than to send the person or vehicle on their way. It is doubtful that s 67 of the SOA applies to public places like road or parks. No statutory power is needed to ‘enter into’ a public place and rarely, if ever, is it necessary to ‘break open’ a public place. If s 67 of the SOA is properly so confined, the police could only maintain surveillance of a vehicle until it entered onto private property, at which time police would probably be authorised to search the car pursuant to a general search warrant because it is another ‘thing’ for the purposes of s 67(4)(b) of the SOA. They could then seize an item falling within that subsection. However, a general search warrant does not authorise the search of a person.

    The Judge’s reasons

17. The Judge declined to exercise his discretion to exclude the evidence of the text messages for the following essential reasons.

18. The Judge concluded that DBS Napper was mistaken in believing that he was empowered by s 52(6) of the CSA to search Mr Middlin-Hannah and to search for, and seize, his smartphone because it was not a substance or equipment prohibited by the CSA. The Judge found that DBS Napper did reasonably suspect that evidence of drug trafficking might be found on the smartphone and that the power conferred by s 68 of the SOA was therefore enlivened, whether DBS Napper had adverted to it or not. However, the Judge was not satisfied that the search of and seizure Mr Middlin-Hannah’s bag was a search of the person. The Judge did not advert to s 67 of the SOA.

19. The Judge nonetheless proceeded to determine the application to exclude the evidence on the premise that the direction to Mr Middlin-Hannah to produce the smartphone was unlawful:

    [35]Assuming the facts here do give rise to the discretion, I have regard to the following matters which I consider are relevant to the exercise of that discretion.

    1     Upon the evidence before me, what Sergeant Napper said could be categorised as a request, and as such, quite lawful.[36]

    2     Insofar as it was a direction to retrieve the phone, it arose from Sergeant Napper’s genuine belief that his power of search extended to an item in the changerooms.

    3     The conversation was occurring in the car park as a result of Sergeant Napper wanting to avoid embarrassing the accused. If police had not been mindful of avoiding embarrassment to the accused, they could have simply entered the changerooms and searched the accused, and his bag in full view of his teammates.

    4 I find that Sergeant Napper did have lawful authority for a personal search of the accused, pursuant to s 68 of the Summary Offences Act.

    5     I accept Sergeant Napper’s evidence that he genuinely believed his power to search the accused and to give directions, extended to the phone. In my view he was mistaken in two ways. Firstly, the only power to conduct a personal search of the accused, on this occasion, was the Summary Offences Act, not the Controlled Substances Act. Secondly, he over estimated the ‘reach’ of a search of the person, as extending to property in the clubrooms.

    6     The unauthorised request or direction does not affect the cogency of the evidence.

    7     The evidence obtained from the phone is crucial to this prosecution for the charges of drug trafficking.

    8     An important consideration in this case is whether the unauthorised request or direction to retrieve the phone from inside the clubrooms, could be categorised as an example of systemic abuse of police powers. If that was the case, I would certainly exclude the evidence.

    (Citation in original)

    [36] Police v Moukachar (2010) 107 SASR 450 (Vanstone J).

20. The Judge then declined to exclude the evidence.

21. On the request for the PIN, the Judge said:

    [33]Before turning to the discretion, there is a second aspect of the police officer’s conduct that is said to be unlawful or improper. This is the conversation which led to the accused providing the PIN number to the phone. Mr Ey argues that the conversation, as set out above, amounted to an inducement and that the PIN number was not provided voluntarily.

    [34]I do not consider there is any merit in that submission. There was nothing unlawful or improper in the choice that was afforded the accused. I accept Sergeant Napper’s ultimately undisputed evidence as to what was said; and his genuine motivation in offering that choice to the accused. The accused may well have been initially hesitant or reluctant to provide the PIN number. However, I find there was no unlawfulness or impropriety in the police conduct in this regard.

    Seizure of the phone was authorised by DBS Napper’s general search warrant

1. I will first deal with the question of whether DBS Napper had lawful authority to seize the smartphone. Even though the debate on voir dire, and in the written submissions on the appeal, predominantly concerned the power conferred by s 68 of the SOA, it is convenient first to consider the power conferred by s 67 of the SOA. Even though it was not adverted to by DBS Napper, it appears to more naturally fit the circumstances in which the smartphone was seized.

2. It is important to emphasise that at the level of deciding whether a power exists, the enquiry must be as to whether the objective facts and circumstance enlivened a power conferred by law. Section 67 of the SOA confers the powers prescribed therein on a police officer who holds a general search warrant, issued by the Commissioner of Police, who has reasonable cause to suspect that, relevantly to the circumstances of this case, there is anything that may afford evidence as to the commission of an offence. An officer who meets those conditions is authorised at law to enter any building and search any container for evidentiary material. DBS Napper was the holder of a general search warrant and he believed that Mr Middlin-Hannah’s smartphone was in the changerooms and that it may afford evidence of the commission of an offence.

3. DBS Napper accompanied Mr Middlin-Hannah into the changerooms when Mr Middlin-Hannah retrieved the smartphone from his bag and handed it to DBS Napper. Plainly enough, DBS Napper thereby exercised the power granted by s 67 of the SOA. It is sophistry to contend that DBS Napper was not exercising the power of search and seizure conferred on him by s 67 of the SOA because he did not, himself, take the smartphone from the bag. A police officer may search by asking another to open a bag, cupboard or other container, and to produce a particular item. Indeed, such a targeted search will often minimise the invasion of privacy or distress of the person searched. If it is practicable to do so, it should be encouraged. At DBS Napper’s request, Mr Middlin-Hannah retrieved the smartphone from the bag and DBS Napper seized it pursuant to the general search warrant.

4. The remaining question is whether DBS Napper had reasonable cause to suspect both that the smartphone was in the changeroom and that it may afford evidence of offending.  It will generally be reasonable to suspect that any resident of Australia has a smartphone, or at least a mobile telephone of one kind or another.  In any event, DBS Napper asked Mr Middlin-Hannah where his smartphone was and was told it was in the changerooms.  

5. I next consider whether DBS Napper had reasonable cause to suspect that the smartphone would afford evidence of drug trafficking.  I have already mentioned that, notwithstanding Mr Middlin‑Hannah’s written submissions, on the hearing of the appeal an oral submission was made that by the time DBS Napper arrived at the changerooms he did not have a reasonable suspicion that Mr Middlin‑Hannah was trafficking in MDMA.  That submission must be rejected.  First and most obviously, DBS Napper was reasonably entitled to place some weight on the information provided by the informer.  Next, the 2011 conviction for trafficking in ecstasy tablets showed that Mr Middlin‑Hannah had the means to traffick in MDMA.  The drug diversion notice issued in the same year showed that he had possessed methylamphetamine.  Mr Middlin‑Hannah’s admission in 2014 that he was an occasional user of cocaine, and the discovery of the small amount of cocaine in his bedroom, was a reasonable basis on which to suspect that he may be engaging in unlawful activities, including drug trafficking, to support his cocaine use.  The finding of a substantial amount of cash in Mr Middlin-Hannah’s bedroom, obviously enough, reinforced the reasonableness of the suspicion that he was trafficking in a controlled substance. 

6. It was submitted that it was unreasonable to rely on possession of the cash without first asking Mr Middlin-Hannah to explain how he came by it.  I reject that submission.  The possession of that much cash raised a reasonable suspicion that it was the proceeds of crime, and would generally have sustained that suspicion even if an innocent explanation had been given.  An investigating police officer is not a court, and not in a position to determine the truth of an explanation in the course of what will often be a fast moving and complex investigation.  Save for a case in which a full, immediately verifiable, innocent explanation is given, circumstances which objectively raise a reasonable suspicion will not be set at nought by a self-serving explanation.  In any event, there is no reason to think that, if asked, Mr Middlin-Hannah would not have given the same, less than full, explanation, before the changerooms were searched, than he did in the subsequent interview.  It follows that the police suspicion that MDMA might be found in Mr Middlin-Hannah’s bedroom was based on reasonable grounds. 

7. DBS Napper’s continuing suspicion to that effect, even after no MDMA was found in the house, was also reasonably based.  I acknowledge that the failure to find MDMA at the house diminished the weight which could be accorded the intelligence from the informer, but, on the other hand, the discovery of the small amount of cocaine and the large amount of cash both reinforced that information and were, in themselves, additional reasons to suspect that Mr Middlin-Hannah was trafficking in controlled substances.  DBS Napper’s belief, when he went to the changerooms, that Mr Middlin-Hannah may be trafficking in a controlled substance, was therefore reasonably based. 

8. It is a notorious fact, and a fact which no doubt motivated DBS Napper, that illicit drug transactions are often conducted by text messages on encrypted social media platforms.  DBS Napper therefore had reasonable grounds to suspect that Mr Middlin‑Hannah’s smartphone might afford evidence of his trafficking. 

9. I conclude therefore that the seizure of Mr Middlin-Hannah’s smartphone was authorised by s 67 of the SOA.

10. The Director also relied on the power conferred by s 68 of the SOA. The Director submitted that even though the smartphone was not on Mr Middlin‑Hannah’s person when he was first asked about it, it came into his possession when he retrieved it from his bag in the changerooms. At the level of the power conferred by s 68 of the SOA, that submission may be accepted. Furthermore, it follows, from my conclusion, that the common law of Australia empowers police to seize items of evidence if the conditions set out in the judgment of Lord Denning are satisfied, namely that DBS Napper was entitled to seize the smartphone once it was in Mr Middlin-Hannah’s possession, even without arresting him, because DBS Napper suspected that he had engaged, or was implicated, in drug trafficking. Whether or not it would have been unreasonable for Mr Middlin-Hannah to give up his smartphone if he were not suspected is a more difficult question.

11. Be that as it may, if DBS Napper had not been empowered pursuant to s 67 of the SOA to enter the changerooms and to search for the smartphone, it would be necessary to give attention to the lack of authority on the part of DBS Napper to give directions in a way which suggested to Mr Middlin-Hannah that he was obliged to obey DBS Napper’s request. Of course, if it were the case, which I hasten to add is not shown on the evidence, that DBS Napper gave directions hoping to circumvent what he perceived might otherwise be an absence of power, there would be strong reason to exercise the discretion to exclude the evidence. However, there is simply no need to traverse that ground. It is plain beyond any question that DBS Napper was authorised by s 67 of the SOA to search the changerooms for Mr Middlin-Hannah’s smartphone and to seize it.

12. I turn next to the alleged impropriety in telling Mr Middlin-Hannah that his smartphone would be seized, but that if he disclosed the PIN and there was no indication on it that he was drug trafficking, DBS Napper would allow him to retain it.  That contention is premised on DBS Napper not having lawful authority, a premise which I have just rejected.  However, I will consider the argument put on the converse premise.

13. Mr Middlin-Hannah contends that DBS Napper impliedly misstated the extent of his lawful power from my earlier holding by informing Mr Middlin‑Hannah that he proposed to seize the smartphone. I will accept for the purposes of this argument that such an implicit assertion was made, even though I think the proposition doubtful. It is not obvious to me why DBS Napper’s statement that he would seize the smartphone represented anything more than that DBS Napper genuinely believed that he had the power to do so. There is no basis in the evidence to find that DBS Napper did not genuinely believe that he had that power. It is difficult to see therefore how, even if contrary to my finding, DBS Napper was not empowered by s 67 of the SOA, that his honest statement that he was entitled in law to seize the smartphone was in any way improper.

14. Public officials exercising executive action must make decisions about the extent of the executive authority conferred on them by law.  It is their duty to do so.  The correctness of their legal conclusion may be questioned and reviewed in legal proceedings, but the law as to misfeasance in public office requires no more than that the officer genuinely and reasonably determine the extent of his or her power.  Only if there is a knowing abuse or excess of power, engaged in with an intention to cause, or reckless indifference as to the causation of harm, is a wrong committed.  An honest representation that the officer has a power is not in itself improper, even if mistaken. [37] Of course, if the seizure of the smartphone was not authorised by s 67 of the SOA, or any other power, the discretion to exclude will be enlivened.

    [37] Northern Territory of Australia v Mengel (1995) 185 CLR 307.

    Unlocking smartphones – observations

15. There is a final issue which should be noticed arising out of DBS Napper’s request for the PIN.  On the finding I would make - that DBS Napper was entitled to seize the smartphone - there was no impropriety in giving Mr Middlin‑Hannah the option of providing the PIN to allow access to his smartphone.  Indeed, there is much utility in adopting that procedure.  For those persons who are wrongly suspected, the option of avoiding the seizure of their property, with all the inconvenience that entails, is a useful one.  The issue is now most likely to arise when seizing electronic devices, but the same principle would apply to the safe or locked filing cabinet of earlier times.  An occupant may choose to avoid the potentially destructive forced opening, or removal, of a cabinet from his or her home by providing the key or code to open it.  As long as the power to seize is not deliberately misrepresented, the giving of an option serves the public interest. 

16. However, I would make one important qualification to the proposition just stated.  The privilege against self-incrimination is not limited to the right to refuse to answer questions.  The privilege extends to the handing over of documents which may incriminate.  It may undermine that privilege if a police officer were to seek assistance from a suspect to access his or her documents, which the police officer believes may contain incriminatory evidence, without informing the suspect of his or her privilege not to facilitate the seizure of that documentary material if it may be incriminating.  Of course, a failure to warn is only legally significant if the request is made at a time, and in circumstances, which would so compromise the privilege that it would cause forensic unfairness in a subsequent criminal trial. 

17. It is well accepted that it is generally unfair to admit against an accused his or her statements in answer to a police interrogation, conducted after police have embarked on ‘the accusatory stage’ of an investigation, unless the accused was first cautioned.  The rationale for the rule is that the interrogation is so closely connected to the trial that it would be an abrogation of the privilege against self‑incrimination to admit the admission on the accused’s trial.  However, the authorities on when the accusatory stage has been reached do not provide an easily applicable bright line delineating the phases of a police investigation between the investigatory stage in which answers made are admissible even in the absence of a caution and the accusatory stage.  That is to be expected given the competing public policy considerations which must be balanced.  On the one hand, it is in the public interest that police investigations of the commission of criminal offences not be unduly burdened, and on the other the privilege against self-incrimination is an important bulwark against persecution by the State.

18. In Van Der Meer v The Queen (Van Der Meer), Mason CJ delineated the two phases of a police investigation as followed:[38]

    The common law balances (a) the need to allow the police freedom of action in the investigation of crime in order to ascertain the wrongdoer and (b) the need to ensure that a suspect is fairly treated and his right to silence protected.  This balance is achieved by permitting the police to conduct a general inquiry into an unsolved crime until the stage is reached when the accusatory stage begins.  It is notoriously difficult to define the point of which that stage begins because there is an infinite variety of fact situations.  The Judges’ Rules endeavoured to meet this problem by imposing restrictions on police interrogation by reference to the occurrence of three events in the course of an investigation.  They were: (1) when a police officer made up his mind to charge the suspect with a crime (r 2); (2) when a suspect was taken into custody (r 3); and (3) when a suspect was formally charged (r 8).  The occurrence of any one of these events may be taken as marking the beginning of the accusatory stage when the giving a caution is required … [a]nd in one other situation at least the obligation to give a caution will arise earlier.  For example when the police have sufficient evidence in their possession to justify a charge, even if they have not decided to charge the suspect …

    [38] (1988) 62 ALJR 656 at 661 (Mason CJ).

19. Mason CJ went on to also add unlawful detention for the purpose of interrogation as marking the end of the general inquiry, particularly if the interrogation takes place in a police station.  He continued:[39]

    That is not only because the interrogation takes place under compelling circumstances but also because the fact that the police create the impression that they are detaining the suspect is in itself some indication that they are contemplating the taking of further steps in relation to him.

    [39] Van Der Meer v The Queen (1988) 62 ALJR 656 at 661.

20. The issue was considered by this Court in R v Dolan.[40]King CJ stated the rule as follows:[41]

    It has always been accepted that while the investigation is at the stage at which the police officer is simply gathering information or giving possible suspects the opportunity of clearing themselves, there is no need for the caution.  At that point there can be no question of the involuntariness or unfairness arising out of omission of the caution.  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 particular 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.  Omission to administer the caution at the commencement of such an interview must put the answers at risk of being rendered inadmissible or excluded in the exercise of the judge’s discretion.

    [40] (1992) 58 SASR 501.

    [41] R v Dolan (1992) 58 SASR 501 at 505 (King CJ).

21. In R v Murphy (Murphy),[42] after citing the passages from Van Der Meer and Dolan, Doyle CJ continued:[43]

    Because the ultimate question is one of unfairness, in the sense of unfairness arising from the use of answers in evidence, one cannot be dogmatic in the statement of relevant principles.  On the other hand, as the passages cited indicate, courts must establish reasonably clear principles or guidelines which can be applied and practiced by police officers.  The passages cited indicate that the commencement of the accusatory stage marks a point at which a caution must be given.  The presence of reasonable grounds to suspect a person indicates that that stage has been reached, even if the police have decided not to charge the suspect … [t]here may be, of course other indications. 

    I am prepared to accept, as counsel argued, that these principles also should not be regarded as exhausting the requirement of fairness.  Accordingly, it was argued that in this case the police should at least have told Mr Murphy that his possible involvement was being investigated, even if a caution was not called for.  I accept that there may be cases in which a person being questioned should be told that he or she is a suspect or possible suspect.  The question is whether this is one of those cases.

    [42] (1996) 66 SASR 406.

    [43] R v Murphy (1996) 66 SASR 406 at 412 (Doyle CJ).

22. In R v Bondareff, Usachov and McCabe,[44] this Court adopted the statements of principle in Dolan.  In R v Bueti,[45] Doyle CJ referred to the passages in Dolan and Murphy cited above and continued:[46]

    The fact that an interrogation has reached the accusatory stage is an indicator that fairness will require that a caution be given before further questions be asked, if the answers are to be used at trial.  But there may be other circumstances that make it unfair to use answers obtained without the administration of a caution.  As I said in R v Murphy (at 414) the requirements of fairness are not to be turned into fixed categories, and the decided cases should not be taken as stating exhaustively what may be required if fairness is to be observed. While it is possible unfairness in the use of the answers at trial that enlivens the discretion, the fairness of the manner in which the police dealt with the suspect becomes relevant.

    [44] (1999) 74 SASR 353.

    [45] (1997) 70 SASR 370.

    [46] R v Bueti (1997) 70 SASR 370 at 377-378.

23. It is clear in this case that the police considered the information they had received from their informant to be reliable and important enough to act on urgently.  They went to Mr Middlin-Hannah’s house within hours of receiving it.  Plainly enough, DBS Napper thought that the discovery of the cocaine and cash at his home added to their suspicion, even though the MDMA was not found, and for that reason went immediately to the clubrooms.  It is clear too, that DBS Napper believed that the presence of text messages on the smartphone would decisively determine whether there was sufficient evidence to charge Mr Middlin‑Hannah. That is why DBS Napper decided and told Mr Middlin‑Hannah that he would retain the smartphone if incriminating text messages were found.  It was also very likely that Mr Middlin-Hannah would be charged for unlawful possession of the cash, even if no text messages were found. 

24. I accept that, objectively viewed, there was insufficient information on which to arrest Mr Middlin-Hannah for trafficking in MDMA until the text messages were discovered, but if he were trafficking, the probability of finding text messages to that effect was high, and only the PIN stood in the way of that discovery.  I would therefore find that for the purposes of enlivening the procedural protection provided by the rule against self-incrimination, the accusatory stage had commenced.  The privilege against self-incrimination would have been compromised if Mr Middlin‑Hannah had provided the PIN only because DBS Napper had led him to believe that he was obliged to.

1. Indeed, it is hard to see why the mobile phone could not, standing alone, be regarded as a ‘thing’ which may be opened, searched and seized within s 67(4)(b) and (c) of the Summary Offences Act:

   (4)   The police officer named in any [general search] warrant may, at any time of the day or night, exercise all or any of the following powers:

   …

   (b)the officer may break open and search any cupboards, drawers, chests, trunks, boxes, packages or other things, whether fixtures or not, in which he or she has reasonable cause to suspect that—

   (i)    there are stolen goods; or

   (ii)there is anything that may afford evidence as to the commission of an offence; or

   (iii)there is anything that may be intended to be used for the purpose of committing an offence;

   (c)the officer may seize any such goods or things to be dealt with according to law.

2. Accordingly, in my opinion, there was no illegality associated with police threatening to retain the appellant’s mobile phone, with the result that the occasion for the exercise of the discretion to exclude did not arise on account of ‘the choice’ Sergeant Napper offered to the appellant.

   The need for the appellant to be cautioned

3. Given the way in which the case was conducted, the question whether there was an infringement of the appellant’s right to silence by reason of the failure to give him a caution was not closely addressed.  Whilst there was a faint suggestion that the appellant was arrested, he was never under arrest.[107]

   [107] There was no explicit nor de facto arrest, R v Harris (1995) 64 SASR 85.

4. Though I accept the correctness, at least in general terms, of what was said by Vanstone J in Police v Moukachar, in this case matters had moved well beyond any kind of initial inquiry addressed in that case:[108]

   A police officer is entitled to ask questions of an individual. He does not need statutory authority to do so. The purpose of ss 74A and 74AB [of the Summary Offences Act] and s 96(1) of the Motor Vehicles Act is to provide sanctions, in the circumstances prescribed, against the failure of an individual to provide the relevant information. A police officer does not need to bring himself within the circumstances addressed by any of those sections in order to ask the designated questions, or any other questions. However, there is no obligation to answer such questions unless one of those sections, or some other statutory provision, obliges the individual to answer.

   In the circumstances which presented themselves on this occasion, the respondent had a clear choice. He could produce some form of identification … in which case the officer would have been content to issue a traffic infringement notice. Alternatively, he could decline to do so, with the consequence that he would have been arrested. …

   [108] Police v Moukachar (2010) 107 SASR 450, [13], [14] (Vanstone J).

5. Before police approached the appellant, they already had the benefit of the appellant’s history of offending, the information available from confidential sources, and they had discovered a small amount of cocaine and a significant amount of cash following a search of the appellant’s home.  Police were well beyond the existence of ‘reasonable cause to suspect’.  As King CJ explained in R v Dolan, the ‘police officer … reached a stage at which he [had] reasonable grounds for suspecting a particular person’.[109]  Accordingly, police ‘ought not to interrogate that person without advising him of his right not to answer questions’.[110]

   [109] Van der Meer v The Queen (1988) 62 ALJR 656, 661 (Mason CJ), R v Dolan (1992) 58 SASR 501, 505 (King CJ) and R v Murphy (1996) 66 SASR 406, 412 (Doyle CJ, with whom Olsson and Perry JJ agreed).

   [110] See also Gibson v Ellis (1992) 59 SASR 420, 424 (King CJ with whom Prior and Debelle JJ agreed): '[w]hen a police officer embarks upon questioning of a suspect against whom he has evidence justifying a reasonable suspicion that the accused has committed an offence, he is bound to administer a caution …'

6. Speaking generally, police offering a person the choice of providing a passcode or PIN, or risk the seizure of that person’s mobile phone, is desirable.  However, to my mind, it is doubtful whether the appellant in this case was offered any real choice.  It seems to me that whilst the appellant was, perhaps literally, given a choice, the admissions made by Sergeant Napper in the course of his evidence demonstrate that, in context, he gave the appellant a direction:

   I didn’t give him a choice but he would have had a choice to make, I didn’t say he had to give me the phone…

7. I agree with Bleby J that there is real difficulty associated with interpreting what occurred where that is not based on a recitation of what was said, but the effect of what was said.  I also agree with the view expressed by Kourakis CJ and Bleby J that, as the matter had clearly moved from the investigatory stage to the accusatory stage, a caution was required to be given to the appellant before he was required to provide his mobile phone passcode.  The giving of a caution usually operates to deny any suggestion of involuntariness when answering police questions.[111]  Here, no caution was given.

   [111] Van der Meer v The Queen (1988) 62 ALJR 656, 660 (Mason CJ).

8. Accordingly, the failure to caution the appellant before directing that he deliver up his passcode raises the question whether what the appellant said is tantamount to an admission or confession, or part of a course of conduct by which evidence was procured by unlawful or improper conduct on the part of investigating police.

9. This raises the potential exercise of two ‘successive’ discretions, often exercised on the same evidence: the ‘unfairness’ discretion applicable to admissions or confessions,[112] and the ‘public policy’ discretion applicable to cases where evidence has been obtained illegally or improperly.[113]

   [112] Police v Dunstall (2014) 120 SASR 88, [22] (Kourakis CJ) referred to with approval in Police v Dunstall (2015) 256 CLR 403, [57]-[58], [83] (Nettle J).

   [113] J Heydon, Cross on Evidence, [27240].  These are separate to the discretion recognised in R v Christie [1914] AC 545 and Police v Dunstall (2015) 256 CLR 403 to reject evidence where it is more prejudicial than probative.

10. The unfairness discretion exists to ensure a fair trial for an accused, not to protect from unfairness in any general sense.[114]  If the act of the appellant telling police his passcode is to be regarded as a form of admission or confession, given in the absence of a proper caution, it is nevertheless hard to see why the proper exercise of the unfairness discretion requires the exclusion of the evidence.  Police did not, deliberately or otherwise, misstate the legal position.[115]  On the exercise of this discretion, what is significant is that the appellant knew the passcode and apparently, thereby, exercised a measure of access and control over the phone’s contents.  This was evidence from which it could be inferred that he was the author of the messages sent from that phone, and had knowledge of the content of the messages received on that phone.  However, it is difficult to regard this as involving material unfairness in circumstances where this did not add greatly to the inference that was, in any event, available from the fact that, when asked to do so, the appellant produced the phone to police. 

    [114] Ridgeway v The Queen (1995) 184 CLR 19, 49 (Brennan J); Police v Dunstall (2015) 256 CLR 403, [83] (Nettle J); R v Lobban (2000) 77 SASR 24, [82], [89] (Martin J, Doyle CJ and Bleby J agreeing); and Police v Hall (2006) 95 SASR 482, [47], [70]-[71], [80] (Doyle CJ), [96] (Bleby J), [215] (Vanstone J).

    [115] R v Hooper (1995) 64 SASR 480, 487-488 (Cox J, with whom Olsson and Mullighan JJ agreed), cf Commissioner of Customs & Excise v Harz [1967] 1 AC 760; Steen v The Queen [2020] SASCFC 60, [112]-[115] (Peek J).

11. Moreover, even if there was some issue about the admission or confession, it does not normally extend to the exclusion of that which has been subsequently obtained derivatively in the form of real evidence.[116]  Cardozo J explained this type of problem in People v Defore:[117]

    A room is searched against the law, and the body of a murdered man is found.  If the place of discovery may not be proved, the other circumstances may be insufficient to connect the defendant with the crime.  The privacy of the home has been infringed and the murderer goes free.

    [116] R v Beere [1965] Qd R 370, Collins v The Queen (1980) 31 ALR 257, 277-278 (Bowen CJ) and Lam Chi-ming v R [1991] 2 AC 212 (PC).

    [117] People v Defore 242 NY 13, 23-24; 150 NE 585 (1926), 588 (Cardozo J), cf Mapp v Ohio 367 US 643 (1961), 656 (Clark J).

12. As well, and as will be seen, absent proof that police procured evidence that they could not otherwise have obtained, it is hard to see how there arises any material unfairness in connection with using derivative evidence.[118] 

    [118] McDermott v R (1948) 76 CLR 501; R v Lee (1950) 82 CLR 133; R v Ireland (1970) 126 CLR 321; Bunning v Cross (1978) 141 CLR 54; Collins v The Queen (1980) 31 ALR 257; MacPherson v. The Queen (1981) 147 CLR 512, and Cleland v The Queen (1982) 151 CLR 1.

13. By contrast, if the discretion recognised in Bunning v Cross should have been considered regarding the exclusion of the evidence discovered on the mobile phone, found with the benefit of a passcode obtained without giving the appellant a caution, the matters to be considered when determining whether to exclude that evidence include the following:[119]

    1.    The nature of the offence charged.

    2.   The probative value of the evidence, and its importance in the proceedings.

    3.   Whether the police conduct involves illegality, impropriety,[120]  entrapment,[121] or unfairness.[122]

    4.   Whether the conduct by police was deliberate, or resulted from a mistake.

    5.   Whether the nature of the conduct affected the cogency of the evidence so obtained;

    6.   The ease with which those responsible might have complied with the law in procuring the evidence in question.

    7.   The legislative intention (if any) in relation to the law that is said to have been infringed.

    8.   Whether the conduct was encouraged or tolerated by those in higher authority in the police force or, in the case of illegal conduct, by those responsible for the institution of criminal proceedings.[123]

    [119] Bunning v Cross (1978) 141 CLR 54 at 74-75 (Stephen and Aickin JJ) and R v Swaffield (1998) 192 CLR 159, [135] (Kirby J).

    [120] Cleland v The Queen (1982) 151 CLR 1, 20 (Deane J).

    [121] Ridgeway v The Queen (1995) 184 CLR 19, 31-32 (Mason CJ, Deane and Dawson JJ).

    [122] R v Lobban (2000) 77 SASR 24, cf Question of Law Reserved (No 1 of 1998) (1998) 70 SASR 281, 288-289 (the discretion does not apply where police officers give false evidence as to how material was obtained), Director of Public Prosecutions v Moore (2003) 6 VR 430, [55] (the unlawful or improper conduct must be the means by which the evidence was obtained).

    [123] Ridgeway v The Queen (1995) 184 CLR 19, 31-32 (Mason CJ, Deane and Dawson JJ).

14. It is well-recognised that the ‘principal considerations of ‘high public policy’ which favour exclusion of evidence procured by unlawful conduct on the part of investigating police transcend any question of unfairness to the particular accused’.[124]  Whilst Sergeant Napper’s ignorance of his own legal authority is troubling, there is no suggestion that he was deliberately exploiting what he knew to be an absence of power when he threatened to seize the appellant’s phone and asked for the passcode.  I doubt whether it can be said that Sergeant Napper misled the appellant.[125]  As it turned out, and as I have found, there was power under the Summary Offences Act to seize the phone and unlock it, whether under the s 67 general search warrant, or under s 68, as supplemented by the common law or as a matter of its proper construction.

    [124] Pollard v The Queen (1992) 176 CLR 177, 202-203 (Deane J).

    [125] Bain v Police (2011) 112 SASR 10, [18] (White J); R v Dam & Nguyen; Case Stated on Questions of Law (No 2 of 2015) (2015) 123 SASR 511, [26] (Vanstone J).

15. There does not appear to have been any consideration given to whether, absent the exercise of ‘the choice’ offered to the appellant, police could not have unlocked the appellant’s mobile phone anyway.  Absent evidence, that is not a matter upon which I think that this Court can express any view, for example, as a matter of judicial notice, notwithstanding the attention devoted to these types of issues in various media reports in recent years.[126]  It was for the accused to make out a proper basis for the exclusion of otherwise relevant evidence on the grounds of illegality, impropriety or the like.[127]

    [126] For example, whether a mobile phone can be opened without knowing the passcode may well turn on evidence regarding the brand of phone, the settings for that phone and the expertise of police and those associated with police in the E-Crime section.

    [127] Cleland v The Queen (1982) 151 CLR 1, 16 (Murphy J): '[i]f the accused alleges that the evidence was obtained by unlawful or improper means, the onus is on the accused to prove this on the balance of probabilities'. Similarly, Deane J held at 20 that '[o]nce it appears that the evidence is relevant and otherwise admissible, the onus of persuading the trial judge that it should, as a matter of discretion, be rejected, lies on the accused'.

16. Accordingly, this Court has no evidence or other means of determining whether police obtained any particular advantage from directing that the appellant provide his passcode without first giving him a caution.

17. There is no suggestion that the failure to caution affected the cogency or quality of the evidence discovered on the mobile phone. As it cannot be said that the failure to caution the appellant has conferred on police any particular advantage, and as police were entitled to reasonably suspect that the mobile phone would, at the least, ‘afford evidence as to the commission of an offence’ (within both ss 67 and 68 of the Summary Offences Act), any illegality or impropriety associated with procuring the appellant’s passcode without a caution is outweighed, and in my view, strongly outweighed, by the desirability of admitting highly relevant, important and admissible evidence of serious criminal wrongdoing.  Ultimately, this evidence appears to have been critical to the prosecution case.

18. 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

19. I agree that the appeal should be dismissed.

20. BLEBY J:             I agree that the appeal should be dismissed.

21. 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.

22. 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).

23. 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).

24. There is a small anomaly, to my mind, in embracing the obligation to give a caution once the accusatory stage has been reached, and then expressing that obligation as applying more firmly or in a more absolute sense when the police officer is about to embark upon a systematic interview.  That an answer to a single question may incriminate the suspect forcefully indicates, to my mind, that it is not so much a question of grades (however unquantifiable) of obligation depending on the length or systematic nature of the interview.  Rather, the nature of the interrogation may be an important factor in the subsequent exercise of the discretion in the face of a caution not having been given that should have been given.

25. Thus, having emphasised the acuteness of the issue in the case of a systematic interview in R v Dolan, King CJ described the consequence of not having given the necessary caution:[134]

    Omission to administer the caution at the commencement of such an interview, must put the answers at risk of being rendered inadmissible or excluded in the exercise of the judge’s discretion.

    [134] R v Dolan (1992) 58 SASR 501 at 505 (King CJ).

26. In the present case, I respectfully agree with the Chief Justice, for the reasons he has given, that for the purposes of enlivening the procedural protection provided by the privilege against self-incrimination, the accusatory stage had commenced by the time that Sergeant Napper encountered Mr Middlin‑Hannah.

27. I accept that on one view of the evidence, at least, there could be said to be an implication in the exchange between Sergeant Napper and Mr Middlin‑Hannah to the effect that Mr Middlin-Hannah did not have to provide his PIN.  However, I do not think that any such possible implication was sufficiently clearly communicated to obviate the need to give a caution when requesting the PIN.

28. I do not think it could be said that Sergeant Napper pressured Mr Middlin‑Hannah into providing the PIN in the face of a stated desire to remain silent.  However, whether or not the police had the technical facility to examine the contents of the phone absent the PIN, it was surely apparent that providing the PIN would amount to positive assistance in the investigation.  Further, while the choice available to Mr Middlin-Hannah was arguably apparent in the words exchanged as recounted by Sergeant Napper, I am not prepared to conclude that this should be taken to have been a genuine choice.

1. Sergeant Napper had told Mr Middlin-Hannah that it was his intention to seize the phone for the purpose of his investigation into trafficking of a controlled substance.  Access to the contents of the phone was critical to the investigation into the offence of trafficking in MDMA.  Sergeant Napper accepted that he did not ‘give him a choice’, although he considered that Mr Middlin-Hannah still had a choice to make.

2. Where evidence of an exchange between police and a suspect is expressed as a narrative of indirect speech rather than in direct quotes, it is appropriate to be cautious in drawing inferences as to the necessary effect on the suspect.  An account of a conversation in indirect narrative form is necessarily compromised, to a degree, by the subjective perspective of the witness giving the account.  It has the potential to obscure any imbalance of power in the exchange.  Sometimes this will be of little moment.  However, when the question is whether the words spoken presented the suspect with a choice, that obscuring may well matter.

3. Thus, while Sergeant Napper’s evidence was that he ‘asked him’ for the PIN (without specifying his exact words), he also said that he had ‘asked him’ to retrieve the phone in the first place. This had been by using the words, ‘can you please get it for me?’. He then accompanied Mr Middlin-Hannah to the change room where Mr Middlin-Hannah retrieved the phone from his bag and handed it to him. Notwithstanding that this had been framed as a request, as the Chief Justice observes, this was manifestly an exercise of the power in s 67.

4. Some exchanges between police and a suspect will, by their nature and content, demonstrate sufficiently that the suspect was speaking or acting in the exercise of a free choice.  In this case, however, the request for the PIN was made immediately following the exercise of the search power.  It was made in apparently similar terms (‘I asked him…’), although the evidence does not go beyond an account in indirect speech.  In my view, these matters, together with the announced context of the trafficking investigation in which a police officer made the request, are acutely relevant to whether Mr Middlin-Hannah should be taken to have been faced with a genuine choice.

5. The relevant exchange commenced with Sergeant Napper expressing an intention to seize the phone and Mr Middlin-Hannah saying he needed it.  Sergeant Napper then said he would have the phone examined and that if there wasn’t anything on the phone he could have it back, ‘so I asked him for the pin code for it’.  His evidence was then, relevantly:[135]

   And I said that if I had a look through the phone and there was nothing on there that I needed or that I would seize for evidence, then he could have the phone back but if there was, then I would need to retain that as evidence.

   [135] Voir Dire Transcript 30.1-5.

6. This exchange is open to be interpreted simply as advising Mr Middlin‑Hannah that the return of his phone was conditional on it not having incriminating evidence, and also requesting the PIN.  I am disinclined to infer anything further from it.  In any event, I am not prepared to conclude that in the circumstances of the search and seizure of the phone, it was sufficiently apparent that there was a genuine choice not to give the PIN.

7. It follows, in my view, that Sergeant Napper should have administered a caution before requesting the PIN.

8. I agree with the conclusion of the Chief Justice, however, that Mr Middlin‑Hannah did not establish that the police would not have been able to gain access to the messages even without the PIN and that, in consequence, no forensic unfairness has been shown. It follows that I agree that Mr Middlin‑Hannah has not discharged his onus to persuade the Court to exclude the evidence of the text messages in the exercise of its discretion.