R v Fagundez (No 1)

District Court

New South Wales

Medium Neutral Citation:

R v Fagundez (No 1) [2023] NSWDC 508

Hearing dates:

20 November 2023

Decision date:

20 November 2023

Jurisdiction:

Criminal

Before:

Newlinds SC DCJ

Decision:

Order that the information obtained as result of seizure of the second mobile phone is inadmissible in the trial.

Catchwords:

CRIME – Admissibility of material seized by the police – Illegal seizure – improperly obtained evidence

Legislation Cited:

Evidence Act 1995, ss 138(1), 138(3),

Law Enforcement (Powers and Responsibilities) Act 2002 ss 21, 27 (1), 28A

Category:

Procedural rulings

Parties:

Rex (Crown)
Carlos Alberto Fagundez (Accused)

Representation:

Counsel:
S Richards (Crown)
A Bhasin (Accused)

Solicitors:
Office of the Director of Public Prosecutions (Crown)
Clover Legal (Accused)

File Number(s):

2021/126538

Publication restriction:

None

JUDGMENT: ex tempore

1. HIS HONOUR: The trial of the accused commenced today before me.

2. There are two counts on the indictment, the first being that on 29 January 2020 the accused did possess child abuse material being photographic images stored on a mobile phone and the second being that on 6 May 2021 the accused to possess child abuse material being a video stored on a mobile phone.

3. The particulars of the charges is that the relevant images and video were stored on different mobile phones.

4. This application for the exclusion of evidence sought to be tendered by the Crown is in relation to material found colloquially “on”, what has been described as the second mobile phone, that is, the phone seized on the arrest of the Accused on 6 May 2021. Access to that mobile phone was obtained by the arresting police.

5. On this application there has been tendered the video and sound from the body worn camera of one of the arresting officers together with a transcript of what was said between the police and the accused at that time.

6. In essence what happened was this.

7. The police knocked at the door of the accused’s premises. He opened the door. The police immediately told the accuse he was under arrest. I find as a matter of law that from that point on the accused was under arrest. The police then found their way into the accused’s unit and whilst he was putting his shoes on, brushing his teeth and doing other preliminary matters to be taken to the police station, they asked him on a number of occasions whether he had “his phone”. For example at question 26 of the transcript the following takes place:

“OIC Alright so...keys...and have you got your phone?

...”

At Q. 40

OIC: Um so maybe something warm to put on...it’s raining outside as well and where’s your phone? Have you got a mobile phone?

ACCUSED: Yes I do.

[Picks up phone and places in pocket]

OIC: Will have to just hold on to your property um...

OFFICER 2: Yeah. What have you got in your pockets? Because you’re under arrest mate so you can’t...we’re taking off you and you’ll get it back after you’re in custody.…