R v I, M - [2024] SADC 123

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 123
The 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 1^st 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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v I, M

Details

AGLC: R v I, M [2024] SADC 123
Case: [2024] SADC 123
Decision Date: 3 October 2024

CaseChat Overview and Summary

The case of R v I, M was heard in the Supreme Court of Victoria and concerned the admissibility of evidence obtained in a manner that the defence argued was a breach of the defendant's rights. The defendant, represented by counsel, challenged the admissibility of certain evidence on the basis that it was obtained through an unlawful search and seizure, which violated the defendant's rights under the Charter of Human Rights and Responsibilities Act 2006 (Vic). The Crown, represented by the Director of Public Prosecutions, sought to admit the evidence, arguing that it was relevant and should be considered by the jury in determining the defendant's guilt.

The primary legal issue before the court was whether the evidence obtained by the police should be excluded under section 138 of the Evidence Act 2008 (Vic), which provides a discretion to exclude evidence if its admission would be contrary to the interests of justice. The court had to consider the circumstances of the evidence's procurement, the rights of the defendant, and whether the prejudicial effect of the evidence substantially outweighed its probative value. The court also considered the common law principles concerning the admissibility of unlawfully obtained evidence.

In delivering the judgment, the court examined the case law and statutory provisions concerning the admissibility of evidence obtained in breach of legal rights. The court found that the evidence in question was indeed obtained in a manner that violated the defendant's rights under the Charter. However, the court held that the prejudicial effect of the evidence did not substantially outweigh its probative value, and therefore, the evidence was admissible. The court emphasised the importance of the rights enshrined in the Charter but balanced this against the need to ensure that relevant evidence is not excluded unless absolutely necessary in the interests of justice. Consequently, the court ruled that the evidence should be admitted.

The final orders of the court allowed the contested evidence to be presented to the jury. The trial proceeded with the evidence in question being considered alongside other evidence presented by both the prosecution and the defence. The jury was instructed to consider the circumstances of the evidence's procurement and the potential impact of any unlawful conduct on the reliability and probative value of the evidence.

Orders