R v I, M
[2024] SADC 123
•3 October 2024
DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v I, M
[2024] SADC 123
Reasons for Ruling of her Honour Judge Fuller
3 October 2024
CRIMINAL LAW - EVIDENCE - ADMISSIBILITY - JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE
Accused charged with aggravated communicating with the intention of making a child amenable to sexual activity – application to exclude record of interview and evidence obtained from accused’s mobile telephone – accused was given arrest rights and spoke with an after hours lawyer from the Legal Services Commission – she advised him to exercise his right to silence and he told her he would follow her advice – accused told police early in interview that he did not ‘wanna answer anything’ but interview proceeded – accused said on a number of occasions during the interview that he did not ‘wanna answer’ and repeated his earlier statement he did not want to answer anything – interview was not terminated.
Accused refused to provide PIN code to his iPad or iPhone during interview after being given legal advice – 6 days later whilst in custody accused made complaint of sexual assault – investigating officer learnt of complaint and spoke with two detectives who were tasked to attend upon the complainant – investigating officer told them he did not have the PIN code and needed it – detectives obtained PIN code from accused without administering a caution then provided it to investigating officer and contents of accused’s mobile telephone were then extracted.
Held: Accused exercised his right to silence and interview should not have proceeded. Interview excluded in exercise of discretion.
Conduct of investigating officer and detectives in requesting accused’s PIN code without administering caution was improper –police conduct was inconsistent with privilege against self-incrimination– impropriety did not affect cogency of evidence – evidence crucial to prosecution case – balancing of factors relevant to Bunning v Cross discretion – evidence excluded.
Criminal Law Consolidation Act 1935 (SA) s 63B(3)(b); Summary Offences Act 1953 (SA) ss 74B, 74BQ, 74BR, 74D, 79A, Part 16A, referred to.
Thomas v The King [2024] SASCA 51; Middlin-Hannah v The Queen (2020) 137 SASR 366; R v Andrews & Ors [2005] SASC 15; R v Harris (1995) 64 SASR 85; R v Ireland (1970) 126 CLR 321; R v Stafford (1976) 13 SASR 392; R v Williamson (No. 2) (1997) 69 SASR 486; R v Bondareff (1999) 74 SASR 353; R v Swaffield (1998) 151 ALR 98; Bunning v Cross (1978) 141 CLR 54, considered.
R v I, M
[2024] SADC 123The Charge
The accused is charged on Information with the following offence:
Aggravated Communicating with the Intention of Making a Child Amenable to Sexual Activity. (Section 63B (3) (b) of the Criminal Law Consolidation Act, 1935).
Particulars
[I,M] on the 1st day of May 2023 at North Adelaide, made a communication for a prurient purpose with the intention of making [SRN], a child under the age of 17 years, amenable to sexual activity.
Circumstances of aggravation
It is further alleged that [I,M] committed the offence knowing that [SRN] was under the age of 14 years at the time of the offence.
Voir Dire
The accused pleaded not guilty to that offence and made an application for a voir dire hearing. The relevant parts of the application sought the following orders:[1]
[1] Paragraphs 1 and 3 were not argued; paragraph 1 was not pursued, and paragraph 3 was conceded by the prosecution.
2.Exclusion of the evidence of Nadia de Bellis in her statement dated 7 July 2023 and Lee Elliot dated 17 September 2023 in relation to opinion and commentary about the nature of any online dating applications or social networking sites and the opinion in relation to the meaning of terms and phrases used in the conversations to be led by prosecution.
Grounds: The witness does not have the appropriate expertise.
4.Exclusion of the record of interview between the applicant and Lee Elliot dated 2 May 2023 as attached to the statement of Lee Elliot dated 17 September 2023.
Grounds:
4.1 The applicant states he does not wish to answer questions as per his right under s 79a Summary Offences Act and the police officer ignores the applicant;
4.2 The police officer interviewing engages in persistent and unfair questioning of the applicant;
4.3 All conversations between the applicant and SAPOL have not been recorded as per s74D of the Summary Offences Act; and/or
4.4 It would be unfair considering all the circumstances of the interview.
5.Exclusion of all material obtained from the mobile telephone of the applicant (exhibit PE0021)
Grounds:
5.1 Voluntary permission was not provided by the applicant.
5.2 A lawful order was not obtained to examine the mobile telephone.
I granted the application for a voir dire and a number of witnesses gave evidence and various exhibits were tendered with respect to grounds 2, 4 and 5 of the Rule 39 notice. At the outset, Mr Williams SC for the prosecution, advised that the prosecution did not propose to lead the balance of the record of interview from answer 281 when the accused said, ‘I don’t wanna answer anything’.
This judgment sets out my reasons for ruling on grounds 4 and 5. I dismiss the application with respect to ground 2. The evidence is admissible. It is not expert or opinion evidence but merely evidence of the available sources of information which explain the meanings of terms used on the relevant social media or messaging applications. The weight to be attached to this evidence is a matter for the trier of fact.
The Evidence
Nicholas De Guglielmo
Mr De Guglielmo is an employee of SAPOL attached to the Digital Evidence Section within the Financial and Cybercrime Investigation Branch. His role at the relevant time was that of a digital evidence support officer. He had sworn four affidavits, all of which were tendered on the voir dire: Exhibits VD P1 – P4.
Mr De Guglielmo explained the process by which extractions are performed. He said that the investigator nominates exhibits and submits them to the Digital Evidence Section (‘DES’). Once submitted the examination and extraction process begins. Examination involves a physical examination of the device and then extraction is performed using a software or hardware tool. One such tool is called GrayKey. Upon its conclusion, the data relating to the particular exhibit is made available for an investigator to review. That investigator can select and tag various items of evidence found on the exhibit and once the investigator’s review is complete, DES provides a statement with an accompanying evidence disk to the investigator and the job is closed.[2]
[2] T 9 – 13.
The software tool used for the accused’s Apple iPhone 12 Pro, item 21, was GrayKey.[3] Data was extracted, tagged and then provided by way of an evidence disk.[4] This is set out in the affidavit P4.[5] The exhibit examination mobile device proforma filled out by Mr De Guglielmo was tendered: Exhibit VDP5.
[3] T 14.
[4] T 15-16.
[5] T 17.
Mr De Guglielmo explained that he attempted to perform an ‘after first unlock - AFU’ extraction but then had to restart the device because it was not extracting. If a mobile telephone needs to be restarted, then the extraction will be performed ‘before first unlock - BFU’. The software tools used by DES more easily download data from a mobile device that is in AFU rather than BFU state.[6]
[6] T 18-19.
On 2 May 2023, Mr De Guglielmo was attempting to extract the data from the device in AFU state without a passcode. He said that the GrayKey tool would ordinarily be able to extract the data from this phone without the passcode. However, on 2 May 2023 he was not able to extract the data from item 21, the accused’s mobile telephone.[7] When this occurred, Mr De Guglielmo attended to the extraction of data from other exhibits that had been allocated to him. On 9 May 2023, he was provided with the PIN code 786786 by Constable Boin via email. He was asked if he would have been able to perform the extraction without the passcode and he said: [8]
It was highly likely that I probably would have been able to do the extraction, although the tool failed during the time of extraction. At that point I could have used another tool, I could have waited for a software update on the tool, but once I had received the PIN, I just progressed forward using that.
[7] T 20.
[8] T 21, 30-35.
He was then asked whether it was possible for him to say for certain whether he would have been able to perform to extraction without the passcode and he said:[9]
Every device is different, even the same make and model. It would be very likely that we still – that we would be able to get into this phone today, although without having the phone in front of me and trying it on the tool, I can’t give you an exact answer.
[9] T 22, 17-21.
Emails between Mr De Guglielmo and investigating police were tendered: Exhibit VDP6. Mr De Guglielmo said that as at 4 May 2023 he was still having trouble extracting data from item 21. He said he would have been trying to do this almost every day in between 2 and 11 May 2023. However, he said this phone had not been given any priority over the other exhibits he had been asked to examine.[10]
[10] T 24-25.
On 8 May 2023, Mr De Guglielmo had advised investigators that he was having issues extracting data from item 21.[11]
[11] T 26.
Further emails were tendered: Exhibit VDP7, one of which was an email from Constable Boin in which a passcode for item 21 was provided. Once provided with the passcode, the extraction was performed, and Mr De Guglielmo advised Constable Boin accordingly.
In cross-examination, Mr De Guglielmo said that on each of the occasions he tried to extract data from item 21 before being given the passcode he used the GrayKey tool. He agreed that Apple iPhones are particularly difficult to extract data from because they have higher security.[12] He said this was well known within the police force and digital forensics industry and more widely.[13]
[12] T 29.
[13] T 30.
Mr De Guglielmo said that the GrayKey tool was only compatible with this particular model of phone and software and the only one supported for that particular model. There was nothing else he could use at the time. He said he had used GrayKey with other phones that were the exact same model but for some reason it was not working on item 21. He had no idea why it was not working.[14]
[14] T 31-32.
Mr De Guglielmo did not include in his statement the fact that he was having difficulties extracting the data and had conveyed that to investigators because he did not think that was of interest to include.[15]
[15] T 37.
Once Mr De Guglielmo was provided the passcode, he was able to perform complete extraction of the data from item 21.[16]
[16] T 38.
In re-examination, Mr De Guglielmo said he had not told the investigators that if he had the passcode that would overcome the difficulties he was experiencing in extracting the data.
Detective Brevet Sergeant Lee Elliot
The video footage of the arrest rights being provided to the accused and the conversation with the accused between arrest and record of interview were tendered: Exhibits VDP8 and 9.
Detective Elliot said that a formal record of interview was conducted at the City Watchhouse: Exhibit VDP10. Detective Elliot’s statement dated 17 September 2023 annexing the transcript of the interview in VDP10 was also tendered: Exhibit VDP11.[17]
[17] Mr Williams SC invited me to disregard any hearsay evidence contained in VDP11.
The interview, which was an hour and twenty minutes long, was then played in court.[18]
[18] T 44.
In his statement (VDP11) Detective Elliot said that on 1 May 2023, he was on plain clothes investigational supervisory duties when he was made aware of an incident and then sent Senior Constable O’Reilly and Constable Boin to the child complainant SRN’s home address to speak with his mother and his care workers. At the same time, he arranged for inquiries to be conducted with the motel manager of the Comfort Inn Regal Park on Barton Terrace, North Adelaide for information regarding the guests in room 202. Those inquiries revealed that the room was booked for one night online via bookings.com by the co-accused Amarnath Sujeendranath for two guests. After being briefed by the officers who conducted the various investigations, Detective Elliot requested general duty police to immediately attend the Comfort Inn Regal Park and intercept two male suspects. He sent the patrol supervisor an image of the two suspects as depicted in CCTV footage from the motel.
At 12:30am on 2 May 2023, Detective Elliot was advised that police had stopped an Uber outside the motel and had one of the suspects, but the other one had left prior to police arrival. Detective Elliot briefed CIB members, Detective Brevet Sergeants Cundy and Wise to attend the Comfort Inn to assist uniformed police.
At 1:05am, Detective Elliot attended outside the Comfort Inn Regal Park and saw the accused sitting in the back seat of an Uber. Detective Wise was reading his arrests rights on video recording. Detective Elliot noted that the accused was wearing similar clothing to the second male depicted in the CCTV footage.
At 1:15am, Detective Wise handed over the accused to Detective Elliot for his continued arrest and management. Constable Boin searched the accused who was not wearing underwear. He was taken to the City Watch House and asked for legal advice. He did not nominate a lawyer so the Legal Services Commission after hours paging service was called on his behalf. Between 2:15am and 2:40am, LSC solicitor, Brittany Law, provided telephone legal advice to the accused.
Between 2:57am and 4:18am, Detective Elliot conducted a record of interview on video with Constable Boin present.
Detective Elliot said that on 8 May 2023 he was aware that Detective Sikora and Detective Hausler were going to attend a custodial facility to speak with the accused. Detective Elliott spoke to them beforehand, and there was some debate about who should go to speak with the accused based on the information provided over the radio. It was agreed that he would not go because the report of a sexual allegation did not appear to relate to the offences for which the accused had been arrested.[19] He explained why he did not attend: [20]
… but the information was the complainant of a sexual assault and as the officer that had arrested him for an offence of a sexual nature, I saw it as a conflict for me to go in and speak with him about these allegations, and it was decided that – I was attached to the Child and Family Investigation Section at the time – it was decided that the general, or members from the general Criminal Investigation Branch would attend to speak to him because it related to an allegation of sexual assault.
[19] T 159-160.
[20] T 160, 37-38; T 161, 1-8.
Detective Elliott said that the three of them spoke about the offences and allegations he was investigating. He then gave this evidence:
QWas there any mention by you to Detective Brevet Sergeant Sikora on the topic of pass codes to the defendant’s devices.
AYes there was.
QWhat was discussed.
AI think it was on, I don’t have a note of that conversation so I cannot recount it as a word-for-word conversation, but I expressed that we didn’t, for my matter, we didn’t have a passcode for his electronic devices and it was something that I was seeking.
QDid you make any specific request of Detective Brevet Sergeant Sikora in relation to obtaining any passcodes to the devices.
AI wouldn’t phrase it that way. I explained that I didn’t have it, I needed it for our investigation but I didn’t give any directions in terms of obtaining it. It was a matter for him as to whether he was able to elicit it from the defendant.
QAnd so is it, was it your impression then leaving that conversation that Detective Brevet Sergeant Sikora understood that you would be interested in the pass code to either the iPad or the iPhone.
AAbsolutely, yeah. I made it very clear that I didn’t have it and I did want it.[21]
Cross-examination
[21] T 161, 21-38; T 162, 1-6.
Detective Elliot said that if he was taking over an arrest, he had a practice of telling the defendant the offence for which he was under arrest.[22] In this case, he told the accused that he was under arrest for the offence of procuring a child for an indecent act. Detective Elliot agreed that after he asked if he understood that the accused replied, ‘well you said I don’t have to answer anything’.[23] He assumed by that stage that other police who had spoken with the accused had obtained his identification.[24]
[22] T 165.
[23] T 166.
[24] T 167.
Detective Elliot obtained the accused’s name, date of birth, age and address when he was in the back of the police car on the way to the city watchhouse. He also asked him where he was from, as part of rapport building. The accused told him he was born in Pakistan, arrived in Australia and was an Australian citizen.[25] He also asked the accused what he did, and the accused told him he was studying nursing at Adelaide University and worked as a personal carer. Detective Elliot also said that he had noted the accused told him, ‘got here via ride share DIDI’ and ‘doesn’t know other guy, met on Grindr’ but said this conversation took place when he first approached the accused and was captured on video.[26] The conversation in the back of the police car was not audio-visually recorded.[27]
[25] T 168.
[26] T 169.
[27] T 170.
Detective Elliot said that in his experience 9 times out of 10 the legal advice given to an arrested person is to exercise the right to silence and not to provide police with the passcode to a phone. He had used the Legal Services Commission ‘overnight bag’ service for accused who had been arrested out of hours. That service provided legal advice over the telephone but not in person.[28]
[28] T171-172.
Detective Elliot called Legal Services Commission at 1:55am. He told the lawyer, Brittany Law, what the allegations were and when she was ready to speak to the accused, he facilitated that. He could not recall if he spoke to Ms Law after she had spoken to the accused; he said it was either him or Constable Boin. His notes recorded that the conversation between the accused and Ms Law took place between 2:15am and 2:40am.[29]
[29] T 173-174.
Although he could not recall who spoke to Ms Law after she spoke with the accused, he was aware that the advice to the accused was that he should not answer questions. Where advice of that type is given, Detective Elliot said that it was ‘a matter for the defendant when we commence the interview. It’s the defendant’s own freewill to choose not to follow their lawyer’s advice.’[30]
[30] T 176, 13-15.
Detective Elliot said that even when a lawyer has told him that the accused was advised not to answer questions and the accused confirms that he is not going to answer questions he would proceed with the interview by putting the allegations. He said that was his general practice out of fairness to the accused so that he can hear the allegations prior to being charged and decide whether or not to comment.[31] However if an accused told him that he did not even want to hear the allegations or participate in a record of interview, then he may choose not to conduct an interview.[32]
[31] T 176.
[32] T 178.
When he commenced the record of interview of the accused, he was aware that the legal advice was not to answer questions, but he did not know what the accused was going to do with that advice.
Detective Elliot said he had been involved in many investigations where information from mobile telephones was extracted. He said it was general practice from an investigational angle and when he was investigating serious crime it was something he wanted to explore. He said in a matter such as the one involving the accused, the evidence that was or was not on his electronic devices was highly relevant and highly important. He would also be looking for child exploitation material.[33] Although it was early days in the investigation, and he was ‘flying blind’ he considered the ability to access the accused’s phone to be a means by which he could appreciate what was going on.[34]
[33] T 179.
[34] T 180-181.
His understanding of the law was that there were two ways in which the data on a mobile phone or device could be accessed. The first is by bypassing the PIN code or by applying to the court for an order the accused provide the PIN code, if it is not voluntarily provided.[35] Obtaining the PIN code saves time and is a direct route to the phone.[36]
[35] T 179.
[36] T 180.
During the interview, Detective Elliot said his working theory was that the accused was Donny.DDI who had been involved in Snapchat conversations and photo exchanges with the complainant.[37]
[37] T 181.
Detective Elliot could not recall the accused asking to speak to his father in Pakistan.[38]
[38] T 180.
Detective Elliot said he or Senior Constable Boin would have run checks on the accused on the police system and said that there were some minor interactions with police but no photograph of him because he had no prior criminal history.[39]
[39] T 183.
In the police vehicle before the trip to the watchhouse, the accused said he did not want to answer and then at line 24 on page 2 of the interview he was asked whether he understood that he was under arrest and he responded, ‘I don’t wanna say anything’. Detective Elliot said he continued asking questions because the accused was not answering the question he had asked. He said he had not ‘consciously’ turned his mind to the possibility that he was trying to exercise his right to silence.[40]
[40] T 183-184.
Detective Elliot agreed that the accused was crying at times during the record of interview and also said on numerous occasions that he did not want to answer. However, Detective Elliot said his assessment of how the interview was going was that there were questions that the accused was content to answer and others that he did not wish to answer. Detective Elliot said he was going through the process of putting all the allegations to the accused and giving him an opportunity to decide if he wanted to talk or not.[41]
[41] T 185-186.
Detective Elliot said that he asked the accused if he was happy with the legal advice he had been given because if he had said no, he would have asked him if he wanted to have other legal advice arranged for him and have someone come down to be with him during the interview.[42]
[42] T 187.
When the accused said at various stages during the interview ‘don’t want to answer’, Detective Elliot continued to ask questions because there were ‘still matters to attend to, for the interview’.[43] Detective Elliot said that the accused was answering some questions and he concluded that there were some things he was happy to talk about and others that he did not want to talk about. When asked why it was that he went over the topics about which the accused did not want to talk, he said: [44]
… I probably just note the time of the interview, it was done between 3am and 4am, I probably wasn’t in the best state of mind in terms of my cognitive functioning so because of that time, I think I worked 18 hours that day. So the reason for that is most likely that I hadn’t – in asking the same question again, but in a slightly different way, hadn’t necessarily registered what he was saying. The defendant was also talking very softly during the interview and I found it difficult throughout the interview to actually hear what he was saying. That would also – yeah, I mean I try and repeat what he actually says most time, just so it’s registering in my head what was being said.
[43] T 187-189.
[44] T 189, 15-27.
Detective Elliot said he interpreted the accused’s responses ‘don’t want to answer’ as question specific. He then gave this evidence: [45]
[45] T 190, 12-32.
HER HONOUR
QDetective, is there any part of your practice where you have a person you’re interviewing who gives an answer like that, ‘I don’t want to answer’, I don’t want to answer’, to inquire whether that’s a question, question-specific response or whether that’s an indication that the person doesn’t want to continue the interview or answer any questions. Do you ever make that inquiry.
AI do, at times. However with a matter such as this, I felt it important to continue, to try and learn further information and – I mean obviously if the defendant had said to me in a very direct way, ‘stop, I don’t want to answer any more of your questions’, I would have confirmed that with him and the interview would have come to an end. But as the interview evolved, there were – answers were being given for some questions, not others. So I proceeded on that basis.
MS DAVEY
QWhy didn’t you inquire of the accused at this point whether he wanted to continue with the interview or not.
ABecause I wanted to keep him talking.
When asked how many times a suspect would need to say ‘I don’t want to answer’ before he would ask the suspect if he was happy to continue with the interview, Detective Elliot said that it depended on each case. Detective Elliot was then asked about the stage in the interview when the accused said, ‘I don’t want to answer anything’ and he said he did not know whether he heard that during the interview because the accused was speaking so softly. If he had heard that he definitely would have given some thought about bringing the interview to an end.[46]
[46] T 190-191.
Detective Elliot said that he continued the interview because he had not finished exploring the topics he wanted to cover, and the accused was answering some questions and not others. His view at the time was to exhaust all the topics he wanted to cover and then conclude the interview.[47]
[47] T 192.
Detective Elliot agreed the accused’s responses to the request for the passcode indicated that he was following the legal advice not to provide it to police. However he said it was still the accused’s decision whether to provide the passcode or not. He agreed that he was making ‘triply’ sure that he did not want to provide it.[48]
[48] T 193-4.
Detective Elliot said that he understood the privilege against self-incrimination extended to a person’s right to refuse to provide a pass or PIN code.[49] However, it was not his practice to re-read the caution before asking for the PIN code. It was not his practice to issue a specific or tailored caution before asking for a PIN code.[50]
[49] T 195.
[50] T 196.
Detective Elliot asked the accused about his identification because the accused had previously told him that his identification was on his phone. He agreed that he asked this question because ‘the phone might be opened up so that we could commence a review’. He said it was a ‘cross-purpose’ request because he had not seen any identification, although he had seen information on the police system that corroborated the information the accused gave about his name. Detective Elliot said, ‘that may have been a strategy I was using at that particular time in the interview. I don’t have a specific memory of it now, but you’re correct in that the inference to be drawn from that is that that was my purpose’.[51]
[51] T 197, 37-38; T `98, 1-3.
Detective Elliot understood the that the statutory source of power to apply to the court to obtain a PIN code was s 74B of the Summary Offences Act.[52]
[52] T 198.
After the interview concluded, the accused’s clothing was seized but he was provided with other clothing. His pants were seized but his T-shirt was returned.[53] This was done in order to compare it to what could be seen on the CCTV footage. Although he did not have a specific memory, he said the accused would have been told what was going to be seized but he could not say if he was told why.[54]
[53] T 199-200.
[54] T 203.
When Detective Elliot spoke with Detective Sikora and made it very clear that he did not have the PIN code and he wanted it, he believed it was a three-way conversation with him, Detective Sikora and Detective Hausler.[55] Detective Sikora was the person with whom he was primarily interacting on that topic and was the senior of the two.[56] Detective Elliot was asked whether he had any expectation that Detective Sikora would caution the accused before asking for the PIN code and he gave this evidence: [57]
[55] T 204.
[56] T 207.
[57] T 205, 28-38; T 206, 1-24.
AWell if he was, from that conversation he was effectively making admissions to a crime, or that the information he’s providing then gave Detective Sikora reasonable cause to suspect that he is making admissions to a crime, then to issue the caution. My understanding is that the PIN code was provided in him disclosing being the complainant of a sexual assault, himself.
QSo just so I understand. When you said it was a matter for him whether he was able to elicit it from the defendant, is it your evidence that a caution prior to – well let me ask you this; if Detective Sikora had requested the PIN code in the course of a conversation with [I,M] as a complainant, would you have an expectation that he would caution him before asking for the PIN code.
ASpeaking to him as a complainant?
QYes.
AYou’re asking my expectation on it?
QYes.
AI’m not sure I formed a view on it. If I was me, I don’t think I would have cautioned him but you know that’s a matter for, if I speak to him as the complainant of an offence and I was seeking his PIN code to corroborate aspects of his complaint, then no, I wouldn’t caution I don’t think.
QAnd in that scenario if you happen to be the person interviewing and you’ve explained why you considered you were conflicted and you didn’t.
AYep.
QIf that’s your position that you wouldn’t caution him as a complainant, if you requested his PIN code, if he gave the PIN code upon request, without a caution, would you then use the PIN code to access the phone to get evidence for the criminal investigation.
AWell yes. I mean I would use it for both purposes.
On the day following the visit to the remand centre, Detective Sikora gave him the PIN code for the mobile phone, 786786 which he then passed on to Senior Constable Boin.[58]
[58] T 208.
Detective Elliot was shown exhibit VDP6 and agreed that he had been sent an email from Mr De Guglielmo at 8:42am on 8 May 2023 advising that there were issues extracting the accused’s primary phone. However, he said he thought he skim read that email and he could not say when he actually read it.[59] By reference to the Caller Aid Dispatch System document, he agreed that he would not have had the conversation with Detective Sikora until after 10:50am.[60] After refreshing his memory from the CAD document, Detective Elliot said that it was between 1:30pm and 2:55pm that he spoke with Detective Sikora and Detective Hausler.[61]
[59] T 210-212.
[60] T 212-213.
[61] T 213.
Detective Elliot could not recall being told by Ms Law that the accused needed medical assistance.[62]
Re-examination
[62] T 214.
Between the arrest and formal record of interview, Detective Elliot said that in hindsight there was one discussion that he was not happy had not been recorded. That was the note regarding how the accused got to the hotel room.[63]
[63] T 215.
In Detective Elliot’s experience there were some accused who decided to ignore their legal advice entirely. One factor that he considered in deciding whether to interview the accused was providing him with an opportunity to provide an exculpatory account.[64] He did not equate the advice given to the accused not to answer questions with advice not to participate in an interview at all.[65]
[64] T 216.
[65] T 218.
Detective Elliot said that he did not think his strategy or cross-purpose in asking for identification, so that if the accused opened his phone, it could be seized at that moment, was unlawful. He thought it was a proper strategy bearing in mind what they were investigating. He was asked if he adhered to that view, and he said:[66]
I’m always open to – I’m always open to others’ thoughts on the topic but yeah, it sits, it still sits comfortably with me now, but if the court finds otherwise, then obviously I’ll change practices.
[66] T 219, 32-35.
He did not contemplate taking any steps to compel the provision of the PIN code because they had obtained it voluntarily through Detective Sikora. When he spoke with Detective Sikora he understood that the job related to the accused and ‘there was definitely a cross-over because I think he was – I think the complaint as it was reported over the radio or on the CAD referenced that particular night in question’.[67] However, there was not enough information on the CAD for him to determine that whatever was being complained about by the accused occurred in the same factual setting as the allegations against him.[68]
[67] T 220, 221, 17-19.
[68] T 222.
Agreed fact regarding Detective Elliot
After Detective Elliot’s evidence had concluded, Mr Williams advised that agreement had been reached regarding the evidence Detective Elliot would have given if he had been recalled. It was as follows: [69]
I recall that it was not me who spoke with the Legal Services Commission lawyer on the telephone after the client advice had been given. I believe it was Scott Boin. My memory is I was attending to other matters related to the arrest when this occurred, and I was not a party to this phone conversation. Following from this, my memory is Scott and I had a brief conversation, prior to the interview commencing, where he informed me the lawyer had given [I,M] advice not to answer questions but importantly, not the further suggestion that was put to me today. To be clear, I have no memory of Scott informing me, that part of what the lawyer told him was that [I,M] would be exercising his right of silence and would not be answering any questions relating to the matter.
[69] T 294.
Detective Brevet Sergeant Glen Hausler
Detective Hausler was on duty on 8 May 2023. He had no involvement in the investigation into the incident alleged to have occurred in a motel room in North Adelaide involving the accused. He was aware that someone had been arrested for a suspected child related offence because the Child and Family Violence Investigation Section shared a floor with his team in the Investigation Response Section.[70]
[70] T 53-54.
On 8 May 2023, a social worker from the Adelaide Remand Centre called police communications advising that the accused had disclosed or made a report about an alleged sexual assault involving something being inserted into his anus.[71]
[71] T 54.
Detective Hausler realised that the accused was the person suspected of being involved in the child-related offence, but he could not say whether it was before his first visit to the Adelaide Remand Centre (‘ARC’) or after the first or second visit to the ARC.[72]
[72] T 54-55.
On 8 May 2023, an appointment was made to see the accused at 2:00pm at the ARC. Detective Hausler and Detective Brevet Sergeant Sikora attended the ARC. At that stage, he was treating the accused as a complainant in relation to a sexual offence.
Detective Hausler said that after being processed through security and login they were escorted to a private room and the accused was seated across the table. He did not have an exact recollection of what they spoke about but said they would generally explain what their role was and why they were there and explain that they were trying to take down as much information as possible. He could not recall the conversation but said that roughly twenty-five minutes later they were interrupted by corrections officers advising that the accused needed to leave because he was required in court.[73]
[73] T 56.
Detective Hausler only made a note of the fact that the conversation was interrupted.[74] Detective Hausler said it was his practice to make notes of a conversation with a complainant who was alleging a sexual offence. However, he said he imagined that he did not write many notes because they were not there for very long and the start of the conversation involved building rapport.[75] However, he said that he could not say that they had not started discussing the allegations, he may simply have not made notes of it.[76]
[74] T 56.
[75] T 57.
[76] T 57-58.
Detective Hausler said that the accused appeared willing to talk to them about the allegations. They rescheduled the appointment for 10 May 2023 at 2:00pm. On that occasion, the accused provided an account of a night at a hotel, who he was with, and what had happened. At the conclusion of that, Detective Hausler that there was ‘nothing in terms of a rape allegation’.[77]
[77] T 59-60.
Detective Hausler described the accused as having rapid speech, fidgety, crying and with a recollection of certain aspects of the event that he did not think were as clear as he thought they would be. Detective Hausler formed the impression that the accused was distancing himself from an iPad and asserting his innocence in relation to the offence with which he had been charged. They reminded him that they were not there for that matter but were there to take a statement from him regarding the rape allegations.[78]
[78] T 61.
Detective Hausler said that once he realised that the allegations made by the accused related to the same event the subject of the criminal investigation, he did not consider giving him a caution because they were treating him as a victim.[79] He then gave this evidence: [80]
QDid it enter your mind the possibility he may say something that would incriminate him in the investigation side of things.
AI can’t say that I thought of that, no.
[79] T 62-63.
[80] T 63, 15-19.
Detective Hausler said that he could not recall speaking to the accused about the passcode to any of his digital devices or Detective Sikora doing so. He said that in a generalised investigational sense, information from a device might assist with location and other relevant material which may corroborate a complainant’s statement.[81]
[81] T 64.
The information provided by the accused on 10 May 2023 was that on 1 May 2023 he was at his student accommodation when he spoke with a male on the Grindr App who he had met once before. He and the male met and had consensual sex and the accused took an unknown drug orally. The other male asked the accused if he wanted a threesome and he agreed. The other male used his iPad with his consent, but he did not know what he was doing with it. The accused and the other male took an Uber to a hotel room in the city where they were joined by a Caucasian older male. The first male offered the accused something to smell which he did and then inserted and injected a liquid into the accused’s anus with his consent. This made the accused uncomfortable and he went to the toilet. The Caucasian male came into the toilet and asked the accused if he had ‘wasted it’. The accused went onto the bed and had been oiled up. The Caucasian male then injected him in the arm with an unknown substance. Detective Hausler noted that medical staff at the remand centre had not noted any needle marks in his arm. The accused said he was under the influence and did not know what he was doing. The accused said more than once that the first male was using his iPad, but he did not know what he was doing.[82]
[82] T 66-67.
At the conclusion of the interview, Detective Hausler told the accused that no criminal offence had been disclosed and it appeared that everything had been consensual. They did approach correctional staff to suggest a social worker see the accused because he did not appear to be coping in prison.[83]
Cross-examination
[83] T 68.
In cross-examination, Detective Hausler said that he was the person taking the notes of what the accused was saying, and Detective Sikora was doing the talking.[84]
[84] T 71.
Detective Hausler knew Constable Boin as he worked on the same floor and there were on average about 15-20 people working on the same floor. Detective Elliot was a professional working colleague.[85]
[85] T 72.
Detective Hausler said he was not aware whether Detective Sikora had conducted inquiries on the police system to ascertain why the accused was in custody before their first attendance on 8 May 2023. He agreed that this was information that he would have conveyed to Detective Sikora if he had made those inquiries himself.[86] He could not recall if he knew why the accused was in custody before attending on 8 May 2023.[87]
[86] T 74.
[87] T 74-75.
Detective Hausler could not recall the accused mentioning that he was worried because no one knew he was in custody, and he was trying to contact his father in Pakistan and his father’s phone number was the only one he could remember. He could not recall the accused saying that he had asked a social worker to help him call his father in Pakistan or that he needed to get contacts from his phone because he could not get bail. [88]
[88] T 80.
It was put to Detective Hausler that neither he nor Detective Sikora introduced themselves and he said that was ‘one hundred percent incorrect’. He said that is something that they do all the time, being mindful that they are in plain clothes.[89]
[89] T 81.
Detective Hausler could not recall any discussion about a passcode.[90] He said that if no offences were disclosed there would be no reason to request a passcode.[91] However he said that at the end of the first appointment he could still see a relevance for the passcode because they were still treating him as a victim and they could use it once they had the full details.[92]
[90] T 82.
[91] T 83.
[92] T 85.
If a passcode had been provided or disclosed in the first attendance, he would expect a note to be made of that.[93]
[93] T 86.
When he and Detective Sikora returned to the office after the first attendance at the ARC he could not recall having any conversations with any of the investigators involved in the investigation of the accused for criminal offending. He was not aware whether Detective Sikora had any such conversations and said he could not recall him talking to anyone.[94]
[94] T 87.
Detective Hausler did not caution the accused because they were treating him as a victim.[95] Detective Hausler could not recall how he learnt that the accused was a suspect, but he could not recall the specific offence.[96] However, he was aware that it related to an occasion in a hotel room on 1 May 2023. Between the first and second visit to the ARC he was aware that the offence involved communications on an electronic device.[97]
[95] T 87.
[96] T 89.
[97] T 90.
Detective Hausler thought that the accused was not coping in prison. During the second visit he realised there was some cross-over between the complaint the accused was making to him and the offence for which he had been arrested.[98] However, he did not caution the accused because they were treating him as a victim.[99]
[98] T 90.
[99] T 91.
When Detective Hausler attended the ARC on the second occasion, he was aware that an iPad had been seized from the accused. He agreed that in the street check report which he completed, he wrote at 10:02pm on 11 May 2023, ‘the suspect made numerous attempts to make mention that he wasn’t the person using the iPad (which is believed to be the device which communicated with a child that involved his arrest. Members not involved with this investigation)’.[100]
[100] T 93.
Detective Hausler agreed that the street check report included a note that ARC staff were spoken to about the welfare concerns for the accused and suggested that the ARC social worker re-contact the accused to provide mental health assistance. He said that he was concerned about the accused’s welfare based on his observations of the accused on the first and second occasion.
Re-examination
Detective Hausler said that if there had been disclosure of an offence or something he needed to dig deeper into he would have made a note of it.[101] Detective Hausler gave evidence that he would have said in introducing himself to the accused, ‘my name is Detective Glen Hausler. We are from the Eastern District Criminal Investigation Branch. We are detectives. We are here today to speak to you because you have disclosed to the social worker that you had been raped and an unknown object inserted into your anus. Can you please tell us what happened’. He agreed that he did not have a recollection of what he in fact said.[102]
[101] T 99.
[102] T 100.
Detective Hausler said rapport building is part of his practice when interviewing a complainant to make the person feel comfortable given the sensitivity of the topic, particularly if the complainant is male.[103]
[103] T 101.
Detective Brevet Sergeant Greg Sikora
On 8 May 2023, he was tasked to attend the Adelaide Remand Centre and attended with Detective Hausler at 14:03 that day. He understood that the accused had been remanded at the ARC and made an allegation through his social worker that he was the victim of a rape. The circumstances of that complaint were not known at the time; the information was vague.[104]
[104] T 105-106.
Detective Sikora made inquiries to ascertain why the accused was incarcerated and learnt that he had been charged with making a child amenable to sexual activity. He found this information on the Shield computer system in an occurrence log which had a narrative of the circumstances of the incident. He could not say with certainty that he read the narrative, but he thought he would have.[105]
[105] T 106.
Detective Sikora said his purpose in attending the ARC was to speak to the accused about the rape allegations and not why he was incarcerated. Detective Sikora was not involved in that investigation.[106] Upon arriving at the ARC they were escorted to an interview room and the accused was presented through another door. They started a conversation with him about why they were there and invited him to tell them about the allegations because they did not know much about them beyond the fact that the report had been made.[107] However, it was only a short interaction because staff returned to the room and said that the accused was due in court and he was removed from the room.[108]
[106] T 108.
[107] T 108-109.
[108] T 110.
Detective Sikora said that he had a PIN number recorded in his notes which he understood was for the accused’s iPad. He did not know how or why he wrote that in his notebook. All he had recorded in his notebook was the fact of the attendance at the ARC, the accused’s name and date of birth, the fact he was remanded at the ARC and the PIN code.[109] Detective Sikora said: [110]
This is going on – on my memory, I understand that was to do with an iPad that belonged to him. I can’t recall the context of why he provided me with the PIN and that’s all I can say. I’m not sure why he provided me with this PIN number …
At that time, I’m not sure why it was relevant, whether it was the disclosure he made which sort of would, I guess, make a little more sense when we revisited him at a later time but at that particular time I’m not sure why that was relevant.
[109] T 110-111.
[110] T 111, 33-37; T 112, 16-20.
Detective Sikora was not sure whether he asked the accused for the PIN, or he provided it without being asked. At the conclusion of the first visit, Detective Sikora said that no offences had been disclosed by the accused.[111]
Cross-examination
[111] T 112.
In May 2023, Detective Sikora worked on the same floor as Detective Elliot but they were in different sections and he had never worked on the same team as him.[112]
[112] T 113.
In relation to the tasking on 8 May 2023 to attend the ARC, Detective Sikora was not certain whether he received that directly via the CAD system or through a supervisor.[113] When he made inquiries on the system into the reason for the accused’s incarceration he was not sure whether he looked beyond the main report which set out the time, date and brief nature of the allegation and reason for incarceration.[114] He could not recall if he was aware that the accused had participated in a record of interview.[115] He said he did not know that the accused had declined to provide police with passcodes to his device and was not sure who was in charge of the investigation. He could not recall speaking to Detective Elliot before attending the ARC.[116]
[113] T 116.
[114] T 117-118.
[115] T 118.
[116] T 120.
Detective Sikora said it would be normal for his partner to also look at the report but said that ‘it would be a natural conversation you would have in the car about what you’re attending to, so at least you’re on the same page and you know what’s going on’. However, he could not now say what conversation he had with Detective Hausler about the accused before their first attendance at the ARC. [117]
[117] T 121, 23-26.
Detective Sikora could not recall the accused’s demeanour during the first visit but said he was definitely upset on the second occasion.[118] He could not recall what the accused said to him on the first occasion, however he could say with confidence that if he had made an allegation of rape a report would have been raised to reflect that.[119] He could not recall whether the accused gave him enough information for him to conclude that the events about which he was complaining related to the same occasion for which he had been arrested. He was not sure of what relevance, if any, the PIN code had to his tasking [120] and was not sure whether he intended to do anything with the PIN code he had obtained.[121]
[118] T 122.
[119] T 123.
[120] T 124.
[121] T 125.
Detective Sikora agreed that when he returned to the Adelaide Police Station, he gave the PIN code to Detective Elliot. He agreed that in his statement he said:[122]
I left the ARC and I returned to the Adelaide Police Station. On arrival, I had a conversation with Brevet Sergeant Elliott regarding my interactions with [I,M]. During the conversation, I provided Elliott with the PIN code 786786.
[122] T 127, 2-7.
Detective Sikora said that he did not know how he and Detective Elliot came to be interacting on this topic and said there was a chance that he knew that Detective Elliott had some involvement in the matter, and it was possible he approached Detective Elliott.[123] He was not sure if Detective Elliott was aware before they left that he and Detective Hausler were attending the ARC to speak to the accused.[124] Detective Sikora gave this evidence: [125]
QIn that scenario, where if you had knowledge that he, this is Brevet Sergeant Elliott, had been involved in investigating the offence for which [I,M] was incarcerated, for that first scenario; if that was your state of knowledge and you are attending for a tasking where [I,M] is a complainant, would you have envisaged providing to Brevet Sergeant Elliott information conveyed to you by [I,M], to Brevet Sergeant Elliott, in an investigation in which [I,M] was an accused.
AI guess that would depend on what he said to us in that short interaction and the level of relevance it would have to what happened, in terms of what Brevet Sergeant Elliott was investigating.
QOkay.
AAnd then again, if I knew, if I remembered more about what he said to me on that day, I could probably answer that a little bit better, but I just don’t remember what he said. So I mean there may have been some relevance to what he was investigating and maybe that was why we were talking about it.
QOkay. So if – and this is just a hypothetical – if [I,M] had said something to you in that interview in the Remand Centre, that you thought might be relevant to Detective Brevet Sergeant Elliott’s investigation, would you have conveyed that information to Brevet Sergeant Elliott.
AIf it was relevant, yes. If the information is completely irrelevant, then there wouldn’t be a need to, but if it was relevant, it would be likely that I would speak to him.
[123] T 128.
[124] T 130.
[125] T 128, 25-38; T 129, 1-17.
Detective Sikora did not caution the accused during the first interview because he was treating him as a victim, ‘we’d obviously treat victims differently to offenders and the right to silence isn’t at all relevant to victims and I wasn’t investigating why he was in prison’.[126]
[126] T 129, 27-30.
Detective Sikora said that he did not think ‘there was a way’ that he would have known that the PIN code would be relevant to Detective Elliott’s investigation.[127]
[127] T 131.
He was not sure if Detective Hausler was present when he gave Detective Elliott the PIN code.[128]
[128] T 132.
Detective Sikora said he could be certain that it was on the second visit to the ARC to see the accused that he realised there was a correspondence between the matter for which he was arrested and his own complaint.[129]
[129] T 135.
On the second occasion they visited the accused, he was not cautioned and nor was the interview recorded by audio-visual means. Detective Sikora said it did not cross his mind that the accused might make disclosures about the incident for which he had been arrested.[130] The accused was upset but he could not recall the exact moment when he became upset.[131] Detective Sikora could not recall the accused talking about his father on either the first or second visit.[132] He did, however, say he was concerned about being in custody and as a result Detective Sikora or Detective Hausler spoke to staff member about the accused’s welfare.[133]
[130] T 144.
[131] T 145.
[132] T 147.
[133] T 148.
Detective Sikora was asked whether he had a beard in May 2023 and he said he had never had a beard. He had not been asked to provide a statement prior to July 2024.[134]
Re-examination
[134] T 149-150.
Detective Sikora said that whether or not Detective Hausler had done (or Detective Sikora assumed he had done) his own checks on the accused before the first visit it would still have been natural to have discussed the results of those checks with each other.[135]
[135] T 150-151.
Detective Sikora could not recall being asked by a person in custody to access and obtain contact details, but it would not be something that he would refuse.[136] Finally, Detective Sikora said that he had previously interviewed a person in custody who was making an allegation that an offence had been perpetrated against him or her.[137]
Recalled for further cross-examination
[136] T 151.
[137] T 152.
Detective Sikora said it was possible he had a conversation with Detective Elliot before he and Detective Hausler went to the Remand Centre but he had time to reflect on it and he did not remember the conversation or even if there was a conversation.[138] He doubted that he had tried to ‘palm off’ the job to Detective Elliot because there is a general practice that a person cannot investigate a suspect as an offender and as a victim in similar circumstances.[139]
[138] T 281.
[139] T 281-282.
Although he could not recall any conversation with Detective Elliot, he rejected the suggestion that the purpose of attending the Remand Centre was to get the PIN code to then provide it to Detective Elliot. Their reason for attending was to investigate an allegation of rape.[140]
[140] T 284.
Detective Sikora was then asked to assume that the conversation as attested to by Detective Elliot had taken place: [141]
[141] T 284, 10-38, - T 286, 1-11.
QDetective, it’s clear that you have no recollection of the conversation that’s been put to you. If you were to assume that that did occur, that is, that Detective Elliot, and you now can’t recall, said to you ‘Look, I don’t have it. I need it’ and he made it clear to you that it was important for his investigation, would that have influenced you in any way in your dealings with [I,M] at the Remand Centre. That is, would you have discussed or requested the PIN code from him if that had been made clear to you by Detective Elliot. I appreciate that it’s a scenario that’s a hypothetical, but if you were to assume that that conversation occurred –
AIt would depend on obviously the circumstances at the time, but I am aware that currently when you request a PIN code from someone it needs to be under caution for a criminal matter, so I am aware of that, which makes me – without knowing where my thoughts were at the time because it’s a long time ago, I am aware that if I was to obtain a PIN for that purpose and I am also aware that if I was doing that for a criminal purpose, I would’ve had to have given a caution to make that a lawful direction or request from him. Given that that wasn’t done or doesn’t appear to have been done, I sort of lean towards the fact that it wasn’t for the criminal purpose because of my awareness of that.
QSo back in May 2023 what was your understanding of any obligation on police if there was a request for a PIN code to be made of – well let’s put it first, a suspect. What was your understanding of the obligation, if any.
AIf I am investigating a suspect for a criminal matter and I want to gain access or want their PIN code, I would do that under caution.
QAnd if you were speaking with a complainant in relation to an allegation of an offence and for some reason the PIN code was relevant, would you caution the complainant.
ANo. And that’s because they’re not being accused of – and it’s always voluntary. It’s never – we never compel people to provide their PINs. We always say ‘If you provide your PIN it may expedite the process of obtaining that evidence’, and especially with victims and complainants, the providing of a PIN allows us immediate access into the device, which means that we can give their device back immediately as well. And that’s – it’s not to add an incentive, but that’s just a reality of how we present that request to a complainant to not, I suppose, inconvenience them.
QIf you’d given a caution to [I,M] for any reason in the conversation at the Remand Centre, would you have made a note of that.
AIf I provided a caution and I was investigating, in that sense I’d be investigating a criminal matter, it would be recorded on audio or video as well. So if I was to do that, it would’ve been recorded. And I know not to do that without a recording because that doesn’t comply with the Act.
QAnd you didn’t make a recording.
ANo.
QDoes that enable you to say one way or the other whether you gave him a caution.
AI can confidently say that if I was providing a caution and therefore investigating a criminal offence and it would be an indictable offence given what he’s in custody for, it would have been recorded as per s.74D. It’s a requirement to record those conversations, it’s not something that I would do without a recording device.
QWhat about if you were asking someone who was a complainant if they were prepared to give you a PIN code.
AWhether I would record that?
QWhether you would caution.
ANo, not a complainant.
QIn your dealings with [I,M] did you consider him to be a complainant.
AI was investigating his allegation of rape, so in my eyes he was a complainant.
Detective Sikora was asked what he thought about obtaining a PIN code from a complainant and then passing it on to be used in a criminal investigation. He said:[142]
It’s difficult to say either way. And generally speaking, if we don’t get a PIN we submit to our Digital Evidence who will then use their technology to get the PIN, themselves, which is most of the time successful. I guess one could argue whether that’s the right way to get a PIN and provide it from a defendant like that, in that sort of setting. It’s difficult for me to say either way whether that’s appropriate or not.
[142] T 286, 287, 5-12.
Detective Sikora was asked to assume that he had been asked by Detective Elliot to obtain the PIN code for his investigation and in the course of interviewing the accused as a complainant he obtained a PIN code without a caution. He was then asked if he considered it inappropriate or improper to then provide the PIN code to Detective Elliot. He said: [143]
[143] T 288, 5-38, T 289, 1.
AI think if I went into that conversation with the intention of receiving a PIN for that purpose, I think that would be inappropriate, on my part. If I was speaking to him as a complainant and he voluntarily provided me with that PIN, I don’t see a problem with him providing me with that PIN. I guess the question lies whether or not it is appropriate to pass that on to Detective Elliot after that conversation.
QAnd what’s your view about that, from a policing point of view not your personal view.
AI guess because I am on the side of police, I would, I mean personally – yeah it’s difficult to answer, but personally I think it just expedites the process of obtaining evidence from a device if we can have the PIN available, or we can submit to Digital Evidence and wait 12 months for the same evidence to come to light. On that basis, it is difficult for me to provide an opinion, but I don’t see a huge issue in that.
QFrom a policing point of view or a personal point of view.
AIt’s probably more a personal point of view.
QWhat about from a policing point of view. In terms of your powers and duties and so on.
ASee we haven’t, I guess in that sort of circumstance there has been no real direction of what we can and can’t do. The direction has always been, like I mentioned earlier, if you’re investigating them for a criminal matter you need to caution them for a PIN. We don’t have it where we are talking to the complainant, the PIN is provided, what do you do with that PIN, I guess that’s difficult because it doesn’t happen very often and we don’t really know, we don’t have a direction in that circumstance.
QIs that a situation you’ve ever been in before.
ANo.
Constable Scott Boin
Constable Boin was the corroborating officer in the interview of the accused. During that interview, the accused declined to provide the PIN code for his iPhone or iPad. On Tuesday 9 May 2023, Detective Elliot advised him of the PIN, and he then conveyed this to the Digital Evidence Section. He could not recall the conversation with Detective Elliot.[144]
[144] T 238.
VDP7 is an email that he sent on 9 May 2023 to Mr De Guglielmo advising him that he had attempted to call him and then providing him with the PIN. He understood that it would be easier for Digital Evidence Section to access and conduct a review of the digital evidence if a PIN code is available.[145]
[145] T 239.
In VDP7, Constable Boin wrote ‘[I,M] was spoken to yesterday in relation to another matter and has provided a potential PIN code for his mobile phone’. He said that information would have come from Detective Elliot, and he recalled that [I,M] was spoken to about a separate matter about which he had contacted police but he did not know the exact details.[146]
Cross-examination
[146] T 240.
When Constable Boin arrived at the Comfort Inn, the accused was being given his arrest rights and this was being recorded. Constable Boin then activated his video recorder and he and Detective Elliot took over.[147]
[147] T 242.
Constable Boin said that when stopping a person suspected of being involved in an offence it was normal procedure to request their personal details.[148] He could not recall if the other police officers who were present gave him the accused’s name, date of birth and address. When Constable Boin was in the police vehicle with Detective Elliot and the accused, he turned off the video recorder. However, he then obtained the accused’s name, date of birth, address and phone number. This was recorded in his notes but not audio visually. He could not recall why he did not video record this.[149]
[148] T 243.
[149] T 244.
He could not recall further conversation in the police vehicle about how the accused arrived at the hotel but said if that had been asked, he would have recorded it in his notebook.[150]
[150] T 245-246.
Constable Boin asked the accused about his wellbeing when he was placed in a holding cell. He said he could not recall what he asked but it would have been, ‘how are you feeling’. The only note of that conversation is ‘pricked in butt by older man with syringe with yellow stuff inside’.[151] Constable Boin said there may have been further conversation, but he could not recall anything else, and he wrote down exactly what the accused told him at the time.[152]
[151] T 247.
[152] T 249.
Before the record of interview commenced, Constable Boin searched the accused’s bag and made notes of what was in there. A phone call to Legal Services Commission was made but he could not recall if he or Detective Elliot facilitated that.[153] He could not recall if he spoke to the lawyer who spoke with the accused. If he had spoken to her and she had told him that he was not feeling well and needed a doctor he would have made a note of it and told the sergeant at the cells. If the lawyer had told him that the accused was going to exercise his right to silence, he would have written that down and told Detective Elliot.[154]
[153] T 250.
[154] T 252-253.
Constable Boin said that at certain points during the record of interview, the accused was upset. On multiple occasions the accused said he did not want to answer. He interpreted that as the accused not wanting to answer that specific question. Constable Boin was referred to page 16 of VDP11 and asked whether he considered that the accused was saying he no longer wanted to answer questions at all when he said, ‘I don’t want to answer anything’. Constable Boin said that he interpreted that as meaning, ‘I don’t want to answer anything about that’. [155]
[155] T 254-255.
Constable Boin agreed that the accused was asked to remove his clothing but could not say whether he stripped naked, it was more likely to be one piece of clothing at a time. He did not recall asking the accused during this time for his PIN code. If he had done so, he would have made a note in his notebook and there was no such note.[156] The accused’s jeans, jacket, shoes and underwear were seized. The underwear was in the accused’s bag.[157]
[156] T 256-257.
[157] T 258-259.
Constable Boin could not say what happened between the time the interview concluded (4:18am) and 5:00am but the accused would not have been left in the interview room on his own unless he was seeking legal advice.[158]
[158] T 259.
Constable Boin was aware that the accused’s PIN code was obtained from him in relation to a separate matter, but he could not recall the details of that other matter. He did not make a note in his notebook about how he obtained the PIN code.[159]
Re-examination
[159] T 260.
The note in Constable Boin’s notebook recording the accused telling him that he had been pricked in butt by older man with syringe with yellow stuff inside was in quotation marks. That was because this was exactly what the accused said.[160]
[160] T 261.
Constable Boin confirmed that the reference on page 15, line 268 of VDP11 was a reference to the conversation with the accused that he had noted in his notebook in quotation marks.[161]
[161] T 262.
Constable Boin said the common practice when seizing clothing was to give an accused alternative clothing, so they are not left naked. One piece of clothing would be seized at a time and the replacement clothing given straight away. He could not say whether the seizure of the accused’s clothing departed from this practice.[162]
[162] T 262.
Constable Boin recorded in his notebook the seizure of a needle capped with packaging (unused) from the accused’s bag at 2:10am.[163]
[163] T 263.
Defence Case on Voir Dire
An affidavit of Brittany Law sworn 31 July 2024 was tendered: Exhibit VDD13. Records of outcome from the accused’s appearances in the Adelaide Magistrates court on 2 and 8 May 2023 were tendered as business records: VDD14. The records of outcome reveal that a bail application was made on 2 May 2023 but then withdrawn on 8 May 2023.
In Ms Law’s affidavit, she attested to the following matters:
1. She is a solicitor and barrister employed with the Legal Services Commission. She opted to be part of the LSC after hours custody advice service, colloquially known as the overnight bag roster.
2. In writing VDD14, Ms Law used her handwritten notes made at the time of the events in order to refresh her memory.
3. At 1.59am on Tuesday 2 May 2023 she received a text message from the LSC after hours custody advice service phone number indicating that there was a male charged with a major indictable offence requiring advice. The request was lodged by Detective Elliot. The text message was annexed to VDD14.
4. Ms Law called the number provided at 2.03am and spoke with Detective Elliot. He told her that the accused had been arrested and charged with procure a child to commit and indecent act and provided her with some details regarding the allegations.
5. Ms Law then spoke with the accused and gave him advice about his arrest rights. He instructed her that he would exercise his right to silence and told her that he was not feeling well and required medical assistance.
6. Once Ms Law had finished giving advice to the accused, she asked him to hand the telephone back to a police officer. She spoke with a police officer but did not know who that was. She advised that officer that the accused intended to exercise his right to silence and was not feeling well and requested that the accused see a doctor.
7. After ending the phone call, at 2.44am Ms Law sent an email to the relevant LSC Duty Solicitor team to alert them to the need to provide custody advice the next morning. At 10.40am on 2 May 2023, Ms Law scanned a copy of her notes to the Criminal Law Practice Division Admin Team Leader. She had no further involvement in the matter.
The notes of Ms Law record that she gave advice to the accused about the right to silence, police bail, legal aid, forensic procedures and not to give his phone password to police as there was no court order. Ms Law recorded under ‘client’s response’ the following: ‘will exercise RTS. Doesn’t need interpreter’. Under the heading ‘adviser’s comments/instructions to investigating officer’, Ms Law recorded ‘will exercise RTS. Deft. not feeling well. Needs doctor.’
The Accused
The accused gave evidence on the voir dire, assisted at times by an Urdu interpreter.
The accused was 35 years of age when he gave evidence, was born in Pakistan and came to Australia in 2014. He has spoken English since Year 10 in high school. In May 2023, he was studying a Bachelor of Nursing at Adelaide University and worked as a care worker and assistant nurse.[164]
[164] T 297-298.
Prior to his arrest on 2 May 2023, he had never had any dealings with police as a suspect. On 2 May 2023, he was in a DiDi ride share leaving the North Adelaide area when it was stopped by police. He was in the back passenger seat and other than the driver, there was no one else in the car. A police officer knocked on his window, so he put it down and asked him ‘what happen’. The police officer was in uniform. The accused asked the police officer why they were not moving, and he said, ‘just stay inside, sit’. A police officer then came to him and asked for his identity card; he was not sure if it was the same police officer but he was in uniform.[165]
[165] T 298 – 300.
The accused then gave that police officer his iPhone and opened the SA gov app to show him his identification and he noted his identification, name, date of birth and address. The police officer took his phone for a moment while he was writing down the details.[166]
[166] T 300.
A different police officer then came from behind holding a handy cam. The police then got him out of the car and searched him. Before he was searched, he was told about his arrest rights, but he did not know what was happening and was confused.[167] It was Detective Elliot who searched him and later interviewed him at the city watchhouse.[168]
[167] T 301.
[168] T 302.
He was confused about what Detective Elliot was saying as he did not know what ‘procuring’ meant. Also, he was not sure if Detective Elliot was asking him to agree or just telling him the charge. He did not ‘agree’ with this charge.[169]
[169] T 303.
He was then put in the back of the police vehicle and Detective Elliot and another police officer were in the front.[170] He could not recall the conversation in the police vehicle because he was in a state of trauma. When they arrived at the city watchhouse he was locked in a cell and offered a glass of water by the other officer. This officer asked him if he had taken any drug. He identified that officer as the one who had given evidence earlier that morning (Constable Boin).[171] All he could recall telling him was that it was a yellowish substance.[172] He was not sure if he told Constable Boin that he had been pricked in the butt by an older man with a yellowish substance.[173]
[170] T 304.
[171] T 305.
[172] T 306.
[173] T 307.
The effects of this drug were getting worse over time, and he said that he was struggling to walk and was confused. He was distressed because this was the first time he had experienced this.[174]
[174] T 306.
The accused said that Constable Boin was a bit softer in his approach than Detective Elliot. He asked Constable Boin to contact his father who was in Pakistan. He then reminded Constable Boin that he wanted to talk to someone.[175] A phone call was arranged but he could not recall who arranged that. After the phone call he was told by Detective Elliot that they would be conducting an interview. At that point he was following the advice of the solicitor which was to give details of his identification and to stay silent. He explained: [176]
But I did not know, like, silent means like just silent, like not saying anything or expressively saying like ‘No, I don’t want to answer’ means like I’m going to silent’.
[175] T 306-7.
[176] T 308, 16-18.
The accused then said that his lawyer advised him to provide basic information – identification, name, date of birth, address and phone number - but he did not need to give them his password or whether he had taken drugs or not and do not answer any further questions. He said he was following his lawyer’s instructions.[177]
[177] T 309.
The accused was then taken to the transcript of his record of interview: VDP11. When he said ‘I don’t want to say anything’ on page 2, line 24, he was following his lawyer’s advice. He said he was confused because the interview continued, and he did not know how to cope with the situation. He said he was not actually engaging in the interview, but he was still answering.[178]
[178] T 310.
The accused was taken to pages 9-10 of VDP11 where he said on three occasions that he did not want to answer. He was asked what he wanted to convey to the police at that point and he said: [179]
I think from somewhere I can, I was feeling like they are definitely violating rights because I want to keep silent and they just keep on, but I didn’t have words to put on like, so I just keep replying ‘I don’t want to answer, I don’t want to answer’.
[179] T 312, 8-12.
The accused said he did not want to discuss anything about the nature of his sexual activity.[180] When he said on numerous occasions during the interview that he did not want to answer, that was because he wanted it to stop, and he wanted to stay silent. He did not think that it was appropriate for the police to keep engaging him to talk.[181]
[180] T 312.
[181] T 313.
When the record of interview concluded, Detective Elliot left, and the accused was in the room with Constable Boin. Constable Boin was flipping the phone and asked the accused a couple of times for the PIN code to his phone. Constable Boin told the accused that if he did not provide his PIN code the device would stay with them.[182] The accused said he was about to give him the PIN code and ask to call his father but Constable Boin said, ‘you have given your time’ and walked off outside. Detective Elliot was not in the room but was outside the door.[183]
[182] T 314.
[183] T 314-5.
The police then asked him to take off his shoes and pants and he was provided with trousers. He took off his shirt but Detective Elliot told him to put it back on so he did.[184]
[184] T 316.
The accused said he did not speak to his father for three weeks following his arrest.[185] After he was taken to the Adelaide Remand Centre he spoke to a social worker and a case worker and gave them permission to contact the police on his behalf. Between 2 and 8 May 2023 he was assessed by a mental health nurse who offered him anti-depressants. The accused told the nurse everything that happened. The nurse told him not to tell anyone and said that the accused could not be a nurse and would be deported.[186]
[185] T 317.
[186] T 318.
Between 2 and 8 May a staff member at the ARC told him that if he contacted the police to get his phone back, he would be able to access it to call his relatives to tell them where he was. His mental state deteriorated, and a social worker said she would call the police on his behalf. Although he was told that staff were going to do something to contact his father, that never happened.[187]
[187] T 319.
The accused said that the only phone number that he had memorised was his father’s number. However, because it was an international number it took a long time to register to call and there was not enough money, so he had to wait.[188]
[188] T 320.
On 8 May 2023, correctional staff told the accused he was being taken to a medical. He was taken into a room and Detectives Hausler and Sikora were already in there. The accused started crying because he thought they were his lawyers. He assumed they were his lawyers because he had it in his head that he would be given a lawyer sooner or later. The detectives did not introduce themselves to him.[189]
[189] T 321.
One of the detectives asked him what happened. The accused then described what happened next: [190]
I start sharing my, the incident from that day, from Yugo to keep on, and then they open their diaries, and it was kind of like a flow of question and answering flow like, so I was giving the answers whatever they were questioning me.
[190] T 322, 5-9.
The accused said he did not know if they were police or his ‘representor’. He found out who they were the second time they visited. The detective who was doing most of the talking was the one with the beard, Detective Hausler. The conversation was interrupted at the point that the accused was explaining how he travelled from his home to the hotel. He explained how he came to provide his PIN code: [191]
They have asked me about – so the conversation was started do I still remember the guy who I went with the hotel and that was the Indian guy. They asked me about his Grindr, like how I met him and then I was explaining through the Grindr. And I don’t remember exactly but one of the detectives, he said like ‘do you remember the profile itself’ like what was written into the profile, like height, age, weight, and then I was not in state of recall what was that. So that leads to the – they want me to access to investigate what is the matter through the iPad PIN code so they can go back and have a look.
[191] T 323, 22-34.
The accused was not asked about the PIN code until the second interruption. The detectives were about to leave, and Detective Hausler said ‘okay what about your phone password?’ and he gave a different PIN code from the one he had given them to his iPad, even though they were the same.[192]He gave the PIN code because he wanted to get justice as well because he had been assaulted and drugged. He was asked who he believed the person was whom he had given his PIN code: [193]
[192] T 324.
[193] T 325, 18-38; T 326, 1-6.
AInitially because they didn’t introduce me who they are, so I was taking them both my legal representation because the investigation officer, the one who came today, he was seems to be like very nice, so I thought he’s my – later like when they were leaving, because I thought he’s my lawyer and the other one maybe he’s police person.
QSo when you gave them your password do you recall saying it to one of them in particular or –
AYour Honour, investigation officer Sikora, he was asking me the iPad password but specifically my phone password is taken by the other police officer.
QAnd at the time that happened did you think he was possibly a police officer.
AThey were about to leave on the second interruption, so they just quickly write it down and then they said we’ll come back and then we’ll hear your story’.
QBut my question was at the time that you –
AI realise that one of person is police, but I was not realising that this guy is also police.
QAnd what was it that made you realise one of them was a police officer.
ABecause his engagement. His, like, firmness and, like he was not asking me the question as like he – when you approach to victim. So his back and forth questions were quite similar to Sergeant Elliot. So I was, I was confuse.
His expertise and opinions were not challenged. I accept his evidence. I have found that it was highly likely but not certain that, at some stage, he would have been able to extract the contents of the accused’s phone. The difficulties he was having with the extraction process were communicated to Detective Elliot via email on 8 May 2023.
Elliot
I found Detective Elliot to be a disarmingly frank witness. I detected no guile about his answers, and he readily accepted propositions and volunteered evidence that he would have realised could lead to findings favouring the exclusion of the impugned evidence.
As most of his interactions with the accused were captured on video tape, there was no real dispute about the sequence of events or the content of their conversations.
In the absence of any positive evidence to the contrary, I accept Detective Elliot’s evidence that the officer with whom Ms Law spoke was Constable Boin.
I find that Constable Boin then had a conversation with Detective Elliot and told him that the accused had been given legal advice not to answer questions. I am unable to make a finding that Constable Boin also told Detective Elliot that the accused intended to exercise his right to silence. However, this is of little moment in light of Detective Elliot’s evidence that even if an accused has been given legal advice not to answer questions and he had been advised that he would not be answering questions, the interview would in all likelihood have proceeded in order for the allegations to be put to the accused.
I find that Detective Elliot formed the view very early in the investigation, and by the time the interview was being conducted, that accessing the contents of the accused’s mobile phone would be very important to the investigation. He also appreciated that obtaining the PIN code was the fastest and easiest method by which to access the data on the phone.
I accept Detective Elliot’s evidence that he interpreted the accused’s response to his question about whether he understood that he was under arrest (‘I don’t wanna say anything’) as non-responsive and that he had not consciously turned his mind to the possibility that the accused was trying to exercise his right to silence. However, from an objective point of view, having watched the footage and listened to the answer, it should have been obvious to Detective Elliot, against the background of the advice that he knew Ms Law had given to the accused, that he was exercising his right to silence.
Given the number of times the accused then said, ‘I don’t wanna answer’ I consider that it was incumbent upon Detective Elliot, if he intended to proceed with the interview and was unsure if the accused’s responses were question specific, to inquire of the accused whether he did not want to answer any questions at all. Detective Elliot frankly conceded that he did not make this inquiry because he wanted to keep the accused talking. He also agreed that despite the accused’s responses, ‘I don’t wanna answer’ he continued to ask questions because there were topics he wanted to cover. Detective Elliot said the likely explanation for the fact that he continued to question the accused on topics which he was satisfied the accused did not want to discuss was that he was very tired and had worked 18 hours that day.
There was an obvious element of persistence about the manner of questioning of the accused, even in the face of repeated statements by the accused that he did not want to answer. That persistence is also evident in Detective Elliot’s questions about the PIN code to the accused’s mobile telephone. After asking the accused for his PIN code and the accused telling him that his lawyer had told him not to provide it, Detective Elliot suggested that if they could look at his phone, they could establish that he was not the person to whom SRN sent pictures of himself naked. When this did not elicit the PIN code, Detective Elliot told him that his phone would be seized and examined, and it would not be returned for some time. He then asked for the password for the accused’s iPad which was refused. Finally, Detective Elliot asked the accused for his identification on the ostensible basis that he needed to confirm his identity. He asked if he had identification in his possession and said that if he could not produce it, he would remain in custody. Detective Elliot then reminded the accused that he had previously told him his licence was on his phone.
Detective Elliot frankly conceded that his request of the accused for identification may have been a strategy to have the accused open up his phone so that the contents could then be reviewed, although he described it as a ‘cross-purpose’ request because he had not seen any identification. He accepted that the information on the police system corroborated the identifying information the accused provided. He then told the accused an application could be made to the court to compel him to provide it. The sequence of events just described aptly captures the determination and persistence displayed by Detective Elliot in his pursuit of information from the accused during the interview.
I formed the view that Detective Elliot was attempting to extract as much information from the accused as possible during the interview and did not conclude the interview until he believed all topics were exhausted. I have carefully watched VDP10, and in particular, when the accused said, ‘I, I was, I was chatting (starts crying and puts hands up over face) … I don’t wanna answer anything’. Detective Elliot is looking at the accused whilst those words are spoken.
Detective Elliot said in evidence that he could not recall hearing the accused say, ‘I don’t wanna answer anything’. However, it is apparent from Detective Elliot’s next question that he must have heard the accused say, ‘I was chatting’ because he then asked, ‘who were you chatting to’. Having watched VDP10, I can clearly hear the accused speaking and there is no difference in the volume of his speech when he says, ‘I was chatting’ and then ‘I don’t wanna answer anything’. I find it difficult to accept that Detective Elliot heard one part of the answer and not the other. I find that Detective Elliot did hear this response but ignored it because he wanted to find out if the accused would admit that he communicated with the complainant SRN. Such an admission would clearly have been of significant probative value.
It follows that the balance of the record of interview took place notwithstanding an unequivocal statement by the accused that could only have been interpreted as meaning he did not want to answer any questions at all. Although the balance of the interview is not being led by the prosecution, the fact that it continued is a relevant matter in evaluating the conduct of Detective Elliot as a whole, as it is informative of his approach, which was consistent throughout. That approach was one of seizing on the accused’s answers to some questions (despite at the outset indicating he did not want to answer anything) and continuing to question him in the hope that he would answer enough questions on particular topics to yield information useful for the investigation, including providing his PIN code.
Detective Elliot was also disarmingly candid in his evidence regarding the conversation he had with Detective Sikora, in the presence of Detective Hausler after learning that the accused wanted to make a report of a sexual allegation. He frankly admitted that he told Detective Sikora that he did not have the passcode for the accused’s electronic devices, and he needed it. He said he made it very clear that he did not have it, and he wanted it. Detective Elliot acknowledged in evidence that it would have been inappropriate for him to interview the accused, although he couched this in the language of conflict and not impropriety. I infer and find that Detective Elliot was prepared to use the other detectives as agents to secure the PIN code in circumstances where he realised it would have been wrong for him to request it and the accused was likely to refuse to provide it.
Detective Elliot also frankly admitted that if he had been interviewing the accused as a complainant, he would not caution him before asking for his PIN code and he would then use the PIN code for the criminal investigation (and any investigation into the allegations made by the accused).
I accept Detective Elliot’s evidence regarding the content of the conversation with Detective Sikora, in the presence of Detective Hausler, there being no evidence from the latter two witnesses to contradict it.
Hausler
Detective Hausler’s recollection of the conversation Detective Sikora had with the accused at the ARC was generally poor. He could give an account of the allegations made by the accused on the visit on 10 May 2023 because he had made notes of what the accused said.
Detective Hausler was adamant that he and Detective Sikora introduced themselves to the accused as police officers when they first met him in the ARC, particularly given they were in plain clothes. I accept his evidence on this topic even though he could not remember exactly what he said by way of introduction. He and Detective Sikora had been tasked to interview the accused as a potential complainant in a sexual assault. There is no reason why they would not introduce themselves as police officers, and every reason why they would. To the extent that I am satisfied that Detective Elliot impressed upon them the importance of obtaining the PIN code, he did not suggest that they deploy any subterfuge to obtain it, and I reject any suggestion that they sought to hide the fact they were police as unfounded and unbelievable.
I accept as genuine Detective Hausler’s lack of recollection of the discussion during the first meeting with the accused at the ARC, and any conversation he and Detective Sikora had with Detective Elliot, or for which was present, on his return. He did not make a note of anything that was said, simply the fact that the interview was interrupted. He did not make a note of the PIN code or any discussion about it. His poor recollection was likely the product of an absence of contemporaneous notes and the passage of time.
Sikora
I formed the impression that Detective Sikora was a thoughtful and frank witness. However, it was curious that he was able to recall interrogating the Shield system to find out why the accused was in prison but had no recollection of the conversation with Detective Elliot the same day about the accused’s PIN code. The PIN code provided by the accused in the first meeting at the ARC was recorded in his notebook, and he had included in his sworn statement a reference to providing that PIN code to Detective Elliot on his return but could not recall any earlier conversation with Detective Elliot in which Detective Elliot told him he needed the PIN code.
I accept Detective Sikora’s evidence that he and Detective Hausler attended the ARC to speak with the accused in relation to the sexual assault allegations, but I am satisfied that when he attended, he did so with the dual purpose of obtaining the PIN code from the accused to provide to Detective Elliot. I am satisfied that Detective Sikora did not caution the accused before he obtained his PIN code.
On Detective Sikora’s evidence, it is impossible to make a firm finding as to the conversation that took place during which the PIN code was provided by the accused to him. However, the inference that arises from a consideration of the combined evidence of Detectives Elliot, Sikora and Hausler is that they well knew the importance to Detective Elliot of the PIN code and used the opportunity of their meeting with the accused to obtain it. In other words, it is highly unlikely that the accused volunteered it or that it was sought in order to corroborate aspects of his complaint. I infer and find that a request for the PIN code was made for the purpose of providing any such code to Detective Elliot for use in the criminal investigation. The accused provided the PIN code when requested.
Boin
I accept Constable Boin’s evidence that the accused told him he had been ‘pricked in butt by older man with syringe with yellow stuff inside’. He made a contemporaneous note of that conversation, and it was relayed to Detective Elliot and referred to in the interview.
Constable Boin had no recollection of speaking with Ms Law and made no notes of doing so but did not suggest that this could not have happened. I have accepted Ms Law’s sworn evidence of the information she conveyed to the police officer to whom she spoke. It follows that I am satisfied that she told Constable Boin that the accused was not feeling well and needed a doctor and was going to exercise his right to silence. I am not able to make any firm finding as to whether he accurately conveyed all of this information to Detective Elliot.
Constable Boin was the corroborating and not interviewing officer. I disregard as irrelevant his interpretation of the accused’s answer ‘I don’t want to answer anything’.
The Accused
In evaluating the accused’s evidence, I have made allowances for the fact that his command of the English language was not perfect, and his mode of expression made some of his answers difficult to understand.
Overall, the accused was not an impressive witness.
Many of his answers were obtuse and he often failed to answer simple and clear questions when being asked by Mr Williams SC. However, when the same question was put by me, he answered it directly. I formed the distinct impression that the accused did not want to accept propositions because they were being advanced by Mr Williams SC.
I consider the accused’s evidence suffered from ex post facto reconstruction on some topics and on other topics was not credible.
For example, the accused insisted that Constable Boin refused to contact his father after the interview and that Constable Boin had asked the accused for his password so he could help him contact friends and family. However, the accused said he knew his father’s phone number as he had memorised it. At no stage during the interview, and specifically when he was advised that he could make a phone call to a relative, did he request a phone call to his father. The accused said he was not sure whether he knew that he could speak to his father and that police had to allow him to do so but then said that Constable Boin refused to contact his father after the interview concluded. I reject his evidence that this conversation occurred or that he did not realise he could call his father. I suspect that he was reluctant to call his father because that would involve him explaining why he was in custody. I reject his evidence that he did not even turn his mind to his father’s reaction should he learn about the circumstances of his arrest.
The accused’s evidence about the advice he was given by Ms Law was corroborated by Ms Law’s evidence, which I have accepted. Accordingly, I find that the accused knew he had a right to silence and intended to exercise that right and had accepted Ms Law’s advice not to provide police with the PIN code to his phone.
The accused’s evidence about his thought processes during the interview was confused and confusing. At first, he said he could not say what he was thinking at the time and then gave varying explanations for answering certain questions. The accused’s evidence about his state of mind at the relevant time was unreliable and unsatisfactory. However, I am satisfied from his responses in the record of interview that he intended to and tried to exercise his right to silence but his attempts to do so were ignored or frustrated. I am satisfied that when he answered some questions he did so only because Detective Elliot persisted in questioning him. The fact that he answered some questions and declined to answer others is not, in the circumstances of this case, evidence from which I am prepared to infer that he was exercising his right to silence on a question specific basis.
The accused’s evidence regarding the first attendance at the ARC by Detective Sikora and Hausler was unconvincing in several respects. I am unable to accept his evidence that the detectives did not introduce themselves and that he did not know that they were police officers. His evidence regarding his belief about the identity of Detectives Hausler and Sikora was confused and confusing; at one point he said he thought they were lawyers, then later he said he guessed Hausler was possibly a police officer and then said he assumed they were both lawyers. I am satisfied that he knew they were police officers because they told him they were.
The accused was the only witness who said he could recall the conversation during which he gave his PIN code to police. Whilst I found his evidence regarding the provision of a different PIN code to Detective Hausler unconvincing and I reject it, I accept his evidence that Detective Sikora asked him for his iPad password. This evidence is supported by the note of the PIN code in Detective Sikora’s notebook and the fact that it was Detective Sikora with whom Detective Elliot had the conversation in which he made it clear he wanted and needed the PIN code. I am also satisfied that when he provided the PIN code to Detective Sikora, he did that knowing he was providing it to a police officer. I reject his evidence that Detective Hausler asked for his phone PIN code and that Detective Hausler became cross with him when he did not do so immediately and accused him of giving an incorrect number.
I find that no caution was administered to the accused during the interview and specifically before he was asked for his PIN code. I find that the accused was never advised that if he provided his PIN code to Detective Sikora, it was going to be given to Detective Elliot for the purposes of the criminal investigation into the accused. In those circumstances, I place little weight on the accused’s agreement with the proposition that he wanted the police to know the truth about what was on his iPad and his iPhone and that he wanted his passcode to make its way to the police so he could get justice for himself.
Analysis and Rulings
The Record of Interview – Ground 4
The accused was advised of all of his rights upon arrest and the exercise of those rights was facilitated. The accused obtained legal advice and was advised not to answer questions other than basic information regarding his identity and was advised not to provide the PIN code for any of his devices. The accused told his solicitor that he would follow her advice.
The advice and the accused’s response to it was conveyed to Constable Boin. However, I am not satisfied on the state of the evidence that this was conveyed or conveyed accurately and fully to Detective Elliot. That this did not occur is not the accused’s fault. However, having carefully considered and watched the record of interview, I have reached the conclusion that the accused unequivocally exercised his right to silence when he responded to Detective Elliot’s question about whether he understood what he was under arrest for.
I accept the accused’s evidence that when he said ‘I don’t wanna say anything’ on page 2, line 24, he was following his lawyer’s advice. I reject the contention that the accused’s response was intended to indicate that he did not want to say anything about the fact that he was under arrest. It is clear from the answer at line 22 that the accused understood he was under arrest and was prepared to acknowledge this. I find that the accused answered the series of questions asked by Detective Elliot after the accused said, ‘I don’t wanna say anything’ because the clear exercise of his right to silence had been ignored.
I accept the accused’s evidence that he was confused because the interview continued, and he did not know how to cope with the situation. I reject the suggestion that the accused was willing to proceed on the basis that he would decide which questions he wanted to answer. This is a very different situation from the factual scenario in R v Andrews & Ors [2005] SASC 15.
Police should not question a suspect further where he has been given and apparently accepted advice to exercise his legal right not to answer questions: R v Harris (1995) 64 SASR 85.[259]
[259] At 96 per Matheson J with whom King CJ agreed. See also R v Ireland (1970) 126 CLR 321 at 333; R v Stafford (1976) 13 SASR 392 at 398; R v Williamson (No. 2) (1997) 69 SASR 486; R v Bondareff (1999) 74 SASR 353.
When the accused said, ‘I don’t wanna say anything’ Detective Elliot should not have questioned him further. Alternatively, if there was any doubt in Detective Elliot’s mind about the import of this answer, he should have asked the accused whether he was intending to exercise his right to silence and therefore did not want to answer any questions.
I have had regard to the principles governing the exercise of the public policy and fairness discretions as set out in R v Swaffield (1998) 151 ALR 98. There is a clear public policy in ensuring that police give effect to the exercise by an accused of his right to silence. In this case, the accused’s unequivocal exercise of his right to silence was disregarded. Although I am not prepared to find that this was deliberate, because Detective Elliot genuinely but unreasonably believed that the accused wanted to answer some questions and not others, I consider that it was a reckless disregard of his right to silence. I am satisfied that accused would not have made the statements he did had the exercise of his right to silence not been frustrated by the continuation of the interview. It would be unfair to the accused to admit the evidence of the record of interview and in my discretion, I exclude it.
The Contents of the Accused’s Mobile Telephone – Ground 5
Was the Evidence obtained unlawfully or by improper means?
The legal advice provided to the accused by Ms Law on 2 May 2023 that he should not provide his PIN code to the police was given in the context of a record of interview that was about to be conducted by Detective Elliot. At that time the accused knew the police were investigating and proposing to question him about a suspected criminal offence. The accused was given a general caution and followed Ms Law’s advice and refused to provide the PIN code despite four attempts by Detective Elliot to obtain it. The accusatory stage had clearly commenced.
When Detectives Hausler and Sikora attended the ARC to interview him six days had elapsed since the accused’s arrest. At the time of the interview at the ARC, the accused had no reason to believe that Detective Elliot had been able to examine the contents of his mobile telephone. No court order had been obtained compelling him to provide the PIN code.
At no time on 2 May 2023, was the accused informed of any connection or communication between Detectives Hausler and Sikora on the one hand and Detective Elliot on the other. The accused was never informed that if he provided his PIN code to Detectives Hausler and Sikora, it would be conveyed to Detective Elliot for use in the criminal investigation into the offence for which he had been arrested.
Whilst I accept that six days later the accused would still have been cognisant of the legal advice which he had accepted and acted upon in refusing to provide his PIN code, that advice and his implementation of it occurred in a specific context. The interview at the ARC occurred in a completely different context, namely one where the accused was a complainant making an allegation of a sexual assault to two police officers who had no apparent connection to Detective Elliot or the criminal investigation.
When he was speaking with two police officers attending upon him as a complainant the accused did not know that if he provided the PIN code to them, it was going to be conveyed immediately to the police officer investigating the offence with which he had been charged and could be used to obtain evidence to incriminate him. There is no evidence from which I can find that the purpose of the request for the PIN code was explained to the accused.
It is telling that Detective Elliot considered that it was a conflict for him to interview the accused regarding his sexual assault allegation. It was entirely appropriate for Detective Elliot to form this view. Mr Williams SC fairly conceded that it would have been improper, but not unlawful, for Detective Elliot to have interviewed the accused and requested his PIN code. Whilst it was not improper for other police officers to investigate an allegation of sexual assault made by the accused and treat him as a complainant (even if there was a commonality in time, date and circumstance between the complaint and the offence with which the accused was charged), it was improper for those police officers to effectively act as the agents of Detective Elliot for the purpose of securing the PIN code from the accused.
This is not a case of information fortuitously coming into the possession of the police; Detective Elliot exploited the opportunity that presented itself to secure the PIN code that the accused had steadfastly refused to provide him. He did so recognising that it would have been inappropriate for him to interview the accused. I am satisfied that Detective Elliot realised that the accused was unlikely to provide him with the PIN code if he attended to interview him about the sexual assault allegation as he had refused to do so during the record of interview.
Detective Elliot was clear in his evidence that if he was interviewing the accused as a complainant, he would not caution him if he was seeking his PIN code to corroborate aspects of his complaint. If he obtained the PIN code, he said he would use it for investigating the accused’s complaint and the criminal investigation into the accused.
It is not surprising, therefore, that Detective Elliot did not suggest to Detectives Sikora and Hausler that the accused should be cautioned before being asked for his PIN code or that the accused should be informed that if he provided his PIN code it was going to be used in the criminal investigation against him.
It is not always necessary to give a word-specific caution regarding the privilege against self-incrimination when it comes to disclosing a PIN: Thomas v The King [2024] SASCA 51.[260] A general caution may suffice.
[260] [35].
In my view, the circumstances in which the accused was asked for his PIN code on 8 May 2023 required the police to issue him with a word-specific caution regarding the privilege against self-incrimination. This is because I have found that the purpose for the request was to use any PIN code provided to unlock the accused’s mobile phone to see if there was evidence inculpating him in the offence with which he was charged.
There was a temporal and contextual disconnect between the legal advice given to the accused and the general caution administered during the record of interview on 2 May 2023 and the interview on 8 May 2023. There is no basis to infer that the accused would or should have understood or realised that in acceding to the request for his PIN code on 8 May 2023 this would be used to obtain evidence against him in the criminal investigation.
Whilst the provision of the PIN code was voluntary in the sense that the accused’s will was not overborne, the manner in which it was obtained squarely raises the question of whether the accused made an informed choice to provide his PIN code to police. Whilst this is a slightly different question from that posed in Thomas v The King,[261] (namely, had the police given the accused a genuine choice not to give the PIN) the ulterior purpose for the request made it incumbent upon the police to caution the accused regarding the privilege against self-incrimination.
[261] [2024] SASCA 51.
It is entirely irrelevant that the attendance of the detectives was initiated by the accused’s complaint and desire to make a report to police. His decision to provide the PIN code upon request was not an informed decision or genuine choice because he did not know and was not told that it was going to be used to obtain evidence against him.
The PIN code was obtained by improper means. It follows that the evidence obtained from the accused’s mobile phone using that PIN was obtained by improper means. The fact that the accused knew the PIN code is not being used by the prosecution as an admission. Rather, it is the evidence obtained from the use of the PIN code that is sought to be led against the accused.
The Public Policy Discretion
My finding regarding the impropriety of requesting the PIN code without a word-specific caution enlivens the public policy discretion.
In Middlin-Hannah v The Queen (2020) 137 SASR 366, Livesey J said that if the discretion to exclude recognised in Bunning v Cross should have been considered regarding 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 included the following:
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, entrapment, or unfairness.
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 or in the police force or, in the case of illegal conduct, by those responsible for the institution of criminal proceedings.
In considering the public policy discretion, I have taken into account that the offence with which the accused has been charged is a serious offence. The evidence is highly probative and is crucial, if not critical, to the proceedings. It is evidence from which an inference can be drawn that the accused was the author of the communications the subject of the charge.
The impropriety does not affect the cogency of the evidence obtained via the PIN code.
The conduct of Detective Elliot, and in turn Detectives Sikora and Hausler was quite deliberate. Detective Elliot exploited the opportunity presented by the accused’s complaint and the agency of the other detectives to secure the PIN code that he had failed to obtain from the accused in the record of interview despite repeated requests. This was improper because no caution was administered before the request was made and the accused was not told the true purpose behind the request. Detective Elliot asserted that no caution was necessary as the accused was being interviewed as a complainant. However, he intended to use the PIN obtained by the detectives for the purposes of the criminal investigation. His assertion that no caution was necessary is unsustainable. Although Detective Sikora could not recall the conversation with Detective Elliot, when asked to assume the request was made by Detective Elliot to secure the PIN code for his purposes and that Detective Sikora then obtained it without a caution (and without it being volunteered by the accused) Detective Sikora said that would have been inappropriate.
Further, Detective Elliot was aware that an application could have been made to the Magistrates Court for an order that the accused provide his PIN code, or he could have waited for Mr De Guglielmo to use other tools to extract the information. In this case, the advantage to Detective Elliot in obtaining the accused’s PIN code on 8 May 2023 was that it overcame the apparent difficulties being experienced by Guglielmo in extracting the contents of the phone using the GrayKey. It also avoided making an application to a magistrate pursuant to Part 16A Summary Offences Act.
Part 16A is a scheme pursuant to which an application can be made to a Magistrate for an order that an accused provide a passcode. The power is restricted to investigations into a child exploitation offence. Section 74BQ of the Summary Offences Act provides that an order is not required where the passcode is provided voluntarily “at the request of a police officer or otherwise”. Where the passcode is so provided, the information is to be treated as though it were obtained as a result of an order pursuant to Part 16A.
Section 74BR of the Summary Offences Act empowers a Magistrate to require a person to provide a passcode in identified circumstances. I am satisfied that such an order could have been obtained on the information available to the investigators at that time. This is not a situation therefore where the information could not have been obtained but for the impugned conduct.
Further, I have found that it is highly likely, but not certain, that Mr De Guglielmo would have been able to extract the contents of the phone at some time.
Accordingly, the evidence could have been procured with relative ease.
The cutting of corners in this case involved the denial to the accused of the exercise of a fundamental right – the privilege against self-incrimination. He had already exercised that right when earlier requested to provide his PIN code in the context of the criminal investigation. The request made of him in the ARC was for the same purpose, but he was not told that it was for that purpose. There was an element of trickery and subterfuge in the circumstances in which the PIN code was obtained from the accused.
The privilege against self-incrimination is one of the bulwarks of our criminal justice system and police conduct which undermines the privilege should be denounced and must not be given judicial imprimatur. The conduct engaged in was not questioned by two other detectives. Instead, it was facilitated by them.
The factors that weigh in favour of excluding the evidence are as follows:
1. The improper conduct was deliberate.
2. The improper conduct involved the cutting of corners in circumstances where the law could have been complied with with ease.
3. The improper conduct involved the exploitation of the opportunity to obtain the PIN code in circumstances where the accused had previously refused on legal advice to provide it to police and was likely to do so again had he known the purpose for the request.
4. The conduct denied the accused a fundamental right – the privilege against self-incrimination.
5. There is a public interest in the protection of the individual from improper or unfair treatment that outweighs the public interest in securing a conviction.
6. Judicial imprimatur or sanction should not be given to improper conduct of this kind.
I grant the application to exclude the evidence of the contents of the accused’s mobile telephone.
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