R v Jane (a pseudonym)

[2025] NSWDC 266

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:

R v Jane (a pseudonym) [2025] NSWDC 266

Hearing dates:

10 July 2025

Date of orders:

18 July 2025

Decision date:

18 July 2025

Jurisdiction:

Criminal

Before:

Newlinds SC DCJ

Decision:

(1)   Any answer to any question given by the Accused to police whilst at the hospital on 15 May 2024, to the effect that he owned the phone, had access to the phone, and/or knew its access code is to be excluded from evidence at his trial.

(2)   Otherwise, the evidence of what was on the phone is admissible.

Catchwords:

CRIME – Proper construction of s 110(c) LEPRA and s 139(2) of Evidence Act – Meaning of “the person has been informed that they are free to leave” for the purpose of s 110(c) of LEPRA and “an investigating officer who does not have the power to arrest” for the purpose of s 139(2) of the Evidence Act – s 99 LEPRA – s 138 Evidence Act – Evidence obtained in contravention of improprieties – Admissibility – Balancing exercise

Legislation Cited:

Criminal Code (Cth) s 474.19(1)

Evidence Act 1995 (NSW) s 90, s 99, s 138, s 139(2)

Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) Part 9, s 110

Cases Cited:

Ghanem v State of New South Wales [2024] NSWDC 213

Jankovic v Director of Public Prosecutions [2020] NSWCA 31; (2020) 281 A Crim R 378

R v Wrigley (No 2) [2025] NSWSC 380

Reeves v State of New South Wales [2024] NSWCA 125

State of New South Wales v Dennis [2025] NSWCA 118

State of New South Wales v Randall [2017] NSWCA 88

Category:

Procedural rulings

Parties:

Rex (Crown)
Mr Jane (a pseudonym) (Accused)

Representation:

Counsel:
Mr Tran (Crown)
Ms Melhuish (Accused)

Solicitors:
ODPP (Crown)
Aboriginal Legal Service (Accused)

File Number(s):

2024/268546

Publication restriction:

The names of the Accused and the NSW Police Officer involved are suppressed until the conclusion of the trial of the Accused and any appeal.

JUDGMENT

Introduction

1. The Accused has been arraigned on five charges pursuant to s 474.19(1) of the Criminal Code (Cth). They each concern alleged transmission, accessing, or possession of child pornography material.

2. Each of the charges carries a maximum penalty of 15 years imprisonment. The Accused has pleaded not guilty to each charge.

3. All of the material, the subject of the charges, is alleged to have been found on a mobile phone the Crown will contend was owned and operated by the Accused.

4. This is an Application by the Accused to exclude all of the evidence obtained from that mobile phone pursuant to s 138 of the Evidence Act 1995 (NSW) (“Evidence Act”). The Accused submits that evidence was obtained either improperly, in contravention of an Australian law, or in consequence of such an impropriety or contravention.

5. The Accused also seeks to exclude two admissions allegedly made by him to police to the effect that the phone was his mobile phone and the provision of the access code that allowed police to gain access to the material in the phone.

6. The basis of the Applications is ss 90 and 138 of the Evidence Act.

Two questions of construction: s 110 LEPRA; s 139(2)(a) Evidence Act

7. The Applications raise for consideration two questions of statutory construction, both of which appear to be important, and neither of which, as far as the parties and I can ascertain, have been the subject of judicial consideration.

8. Those questions are the meaning of “protected suspect" for the purpose of s 110 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) (“LEPRA”); and what does the phrase “an investigating official who did not have the power to arrest the person" mean in the context of s 139(2)(a) of the Evidence Act?

The facts

9. The circumstances under which the statements from the Accused were obtained and the material extracted from the phone are straightforward.

10. On 23 February 2024, Police were granted a telecommunications warrant, allowing them to electronically monitor the activities of a person.

11. Between 22 April and 23 April 2024, police intercepted a number of calls between that person and a phone number of the Accused.

12. On 6 May 2024, a car was purposely set alight in a suburb of Sydney.

13. After that fire, Police intercepted a number of calls between the person and a phone number police believed to be used by the Accused.

14. Police assert that during these calls, the Accused and a third man discuss the car fire. This and some CCTV footage caused them to suspect that the Accused was involved in deliberately setting fire to the car.

15. On 14 May 2024, Police applied for and were granted a search warrant for the Accused’s residence, together with a Digital Access Order linked to the search warrant.

16. At about 8:30am on 15 May 2024, police executed the search warrant. The Accused was not at home when the warrant was executed. He had been admitted to hospital having had a drug overdose.

17. At about 9:50am, a Detective Senior Constable of the NSW Police Force (name supressed) (“DSC Y”) attended a Hospital in Sydney to speak to the Accused.

18. At the hospital, DSC Y seized a phone that was next to the Accused. After questioning by DSC Y, the Accused made admissions that the phone was his. He was subsequently requested to provide his PIN to police – which he did. In short, DSC Y asked him if the phone was his and what its PIN code was. The Accused said “yes” and gave him the PIN code.

19. Police then, using the code, extracted the information from the phone which is the subject matter of the various charges. This was done by use of the ‘Cellebrite’ technology.

20. It is also relevant that the Accused is, and was at the time, known to the police to be of Aboriginal descent.

The alleged s 138 improprieties

21. The Accused relies on two alleged improprieties that he contends enliven s 138, specifically that:

1. DSC Y failed to comply with his obligations under Part 9 of LEPRA; and

2. DSC Y failed to caution the Accused before enquiring about the ownership of the phone or requesting the PIN code, which is an impropriety for the purpose of s 139(2) of the Evidence Act.

The s 90 point

22. Before moving to those alleged improprieties, the Accused also relies on s 90 of the Evidence Act as a basis for excluding the two alleged admissions obtained from the Accused at the hospital, being the admission that the phone was his and the implied admission to the same effect when he gave over the access code.

23. Section 90 of the Evidence Act is in the following terms:

“90 Discretion to exclude admissions

In a criminal proceeding, the court may refuse to admit evidence of an admission, or refuse to admit the evidence to prove a particular fact, if—

(a) the evidence is adduced by the prosecution, and

(b) having regard to the circumstances in which the admission was made, it would be unfair to a defendant to use the evidence.

Note—

Part 3.11 contains other exclusionary discretions that are applicable to admissions.”

24. If one approaches this s 90 argument on the premise that, as a matter of law, the Accused was entitled to the relevant protections provided by LEPRA and s 139(2) of the Evidence Act, then those circumstances, i.e. the very impropriety relied upon for the s 138 submissions made on this Application, would go close to compelling a conclusion that it would be unfair on the Accused to allow the evidence to be adduced, having regard to the circumstances in which the admissions were obtained.

25. If one approaches the matter upon the basis that there were no legal protections as alleged, I consider that the circumstances are such that make the admissibility of the answers to the two questions unfair on the Accused. In short, those circumstances were that the Accused was in hospital, having just suffered from a drug overdose. The medical records disclose that a few hours before and a couple of hours after the interview, he was conscious but “drowsy." For police to question him in those circumstances at all, let alone without “cautioning” him or giving him a choice to delay the questioning, I consider to be unfair. I thus consider the use of the evidence extracted in those circumstances, in the shape of admissions, to be unfair to the Accused. In reaching that conclusion, I have taken into account and given considerable weight to the submissions made by the Crown that, even without these admissions, the Crown is confident it can prove the phone was the property of and used by the Accused.

26. The consequence of that ruling is no more than the rejection of the admissions themselves. This is because s 90 is only concerned with admissions. Such a conclusion does not engage with what this Application is centrally concerned, being the admissibility of the material on the phones themselves.

27. Returning then to the alleged improprieties that engage s 138 of the Evidence Act.

Section 110 LEPRA

28. The first question is whether there has been an impropriety by failure to comply with the relevant provisions of LEPRA.

29. Section 110 of LEPRA contains a definition of “protected suspect” in the following terms:

“protected suspect means a person who is in the company of a police officer for the purpose of participating in an investigative procedure in connection with an offence if—

(a) the person has been informed that he or she is entitled to leave at will, and

(b) the police officer believes that there is sufficient evidence that the person has committed the offence.”

30. Under the legislation, a person who meets the definition of “protected suspect” is entitled to a series of protections being those set out in ss 122-130 of LEPRA as modified by s 112.

31. The structure of this part of LEPRA and its purpose is helpfully explained by Ierace J in R v Wrigley (No 2) [2025] NSWSC 380 (”Wrigley”) at [7]-[16]. As to the phrase “protected suspect,” see Wrigley at [38]-[68]. However, the subs (a) point raised in this Application is not traversed by his Honour. Rather, his Honour’s attention was directed to the requirement in subs (b).

32. It is common ground that the Accused was a person who, at the relevant time, was in the company of a police officer and that police officer had the purpose of participating in investigative procedures in connection with an offence.

33. That offence was not any offence to do with child pornography, rather it was a suspected offence concerning the arson.

34. The definition is engaged if (my emphasis):

“(a) the person has been informed that he or she is entitled to leave at will, and

(b) the police officer believes that there is sufficient evidence that the person has committed the offence.”

35. As to subs (b), I am satisfied that the officers did believe there was sufficient evidence that the Accused had committed an offence, related to, either directly or indirectly, the arson. So much is common ground.

36. The issue is whether, in the circumstances, the Accused had been “informed that he or she was entitled to leave at will.”

37. The factual position is that, during the interaction at the hospital, the Accused was not arrested, nor was he told that he was detained in any way, shape, or form. It is equally clear that he was not told in terms that he was entitled to leave at will.

38. There is a difficult question of statutory construction here.

39. In my opinion, the starting point is, as a matter of law, a person who is not detained by police officers lawfully is entitled to leave at will. The question boils down to, does a person become a “protected suspect” only if they are expressly or impliedly told that they are free to leave by the officer? The word used by the statute is “informed." It is clear that to be informed of something does not necessarily involve being expressly told it in terms but can be communicated by conduct. In the context of a person lying in a hospital bed, the topic never came up because, obviously enough, he was not going to leave because he was in hospital being treated.

40. There can be no doubt that the provisions of LEPRA here are protective. Section 109 of LEPRA confirms that; see also Wrigley per Ierace J. The structure of the legislation is there are two regimes created. First, there is a specific and clear regime for protections of suspects who are detained by police. Second, there is a specific and clear regime, albeit different, for people who are “protected suspects”. They are suspects who have not been detained.

41. The Crown's submission is that, for a person to be a “protected suspect” they must have had communicated to them by the relevant police officer, either expressly or impliedly, that they are free to go. If this is correct it would mean that the legislation has created a third category of people who are entitled to no protection at all, that is people who have not been arrested but have also not been told they are free to go. They are still suspects, but on the Crown’s analysis, they are entitled to no protection at all. That, to my mind, is a surprising conclusion in light of the objects of the Act.

42. In my opinion, the Crown’s analysis subverts the obvious intention of the legislation, which is to protect people in their dealings with police officers when the police officers are investigating crime and suspect the person they are speaking to may have been involved in that crime.

43. I have concluded that the Accused was, at the relevant time, a “protected suspect” for the purpose of s 110 of LEPRA and was not afforded the protections there provided, including the protection of being told that he did not have to answer questions and that, because he was an indigenous person, he was entitled to have a representative from the Aboriginal Legal Service (“ALS”) attend before matters went further. This is because, by not telling the Accused he was detained, the police communicated to him, and in that sense informed him, that he was free to go. This was his legal right and, by the police not telling him he was detained, they were informing him that right had not been interfered with and thus informed him he remained free to leave.

44. Another way of explaining the point is to recognise that it is understood and accepted in many areas of the law, for example, the “misleading and deceptive conduct” provisions in consumer protection legislation, that a “representation” can be conveyed by silence if the circumstances surrounding that silence support that conclusion. In other words, it is accepted that relevant conduct can be silence. In circumstances where a person is fundamentally entitled to leave at will, I consider that a police officer saying nothing to contradict that fundamental entitlement represents to the person they are dealing with that they are free to go. In that sense, the police officer is informing, by their conduct, the suspect that they are entitled to leave at will.

45. I consider that failure to be an impropriety for the purpose of s 138 of the Evidence Act.

Section 139(2) of the Evidence Act

46. Turning then to the question of the alleged failure to comply with s 139(2) of the Evidence Act, it is in the following terms (my emphasis):

“(2) For the purposes of section 138 (1) (a), evidence of a statement made or an act done by a person during questioning is taken to have been obtained improperly if—

(a) the questioning was conducted by an investigating official who did not have the power to arrest the person, and

(b) the statement was made, or the act was done, after the investigating official formed a belief that there was sufficient evidence to establish that the person has committed an offence, and

(c) the investigating official did not, before the statement was made or the act was done, caution the person that the person does not have to say or do anything but that anything the person does say or do may be used in evidence.”

47. The submission by the Accused is that the relevant questioning was conducted by police officers who did not have the power to arrest the Accused.

48. As all the other criteria of s 138 are accepted as having been satisfied, the Accused relies upon the presumption created by s 139(2) so as to deem, for the purpose of s 138(1)(a), the conduct as improper.

49. The issue is who does the legislation mean to capture by “an investigating official who did not have the power to arrest the person?"

50. I consider the starting point to be, when one is considering New South Wales Police officers, that there is but one source of the power of arrest. That is s 99 of LEPRA.

51. As has been explained in many cases, most recently by the Court of Appeal in State of New South Wales v Dennis [2025] NSWCA 118, but also Reeves v State of New South Wales [2024] NSWCA 125, State of New South Wales v Randall [2017] NSWCA 88, and Jankovic v Director of Public Prosecutions [2020] NSWCA 31; (2020) 281 A Crim R 378, and myself in Ghanem v State of New South Wales [2024] NSWDC 213, for that power to be engaged, a police officer must firstly hold the relevant suspicion under s 99(1)(a) – in this case it is conceded and I accept that the officers did hold such a suspicion – and, for the purpose of s 99(b) the police officer must reach or achieve a state of satisfaction that an arrest is “reasonably necessary…".

52. I am comfortably satisfied that DSC Y at the time did not reach that state of satisfaction. The reason I am satisfied of that fact is that he did not in fact arrest the Accused. The simple point is that if he thought it was really necessary to arrest the Accused, that would have happened.

53. On behalf of the Crown, it is submitted that it does not matter if the police officers did not reach the relevant state of satisfaction for the purpose of s 99 of LEPRA, because, properly construed, s 138(1)(a) of the Evidence Act is directing attention, not to an actual exercise of power under s 99, but to a different objective question. The Crown submits that, if it can be shown to have been open to a police officer to reach that level of satisfaction, then, regardless of whether they did or did not, they have a power to arrest for the purpose of s 139(2).

54. I do not accept that submission. First, it seems to me to be contrary to the plain words of the statute. The only power of police officers to arrest without warrant is found in s 99. That must be the power to which s 138 is directed. That power is not engaged by answering an objective question as to whether it would be open to a police officer to reach the relevant state of satisfaction, or for that matter have the relevant level of suspicion. So much is clear from all of the cases I referred to at [50]. It is only engaged by a particular officer at a particular time forming those two states of mind. The relevant state of mind involves an exercise of an evaluative, subjective judgement by a particular officer. Different people confronted with the same facts may well come to different conclusions. Without that state of satisfaction being reached by the relevant officer, there is no power to arrest. I also reject the Crown's alternative submission that the power exists in any event and that satisfaction with the provisions of s 99 are a precondition to the exercise of that power. Again, that submission is, to my mind, inconsistent with the authorities to which I have referred.

55. I consider the proper construction of s 139(2)(a) of the Evidence Act, in the context of a New South Wales Police officer, is that it is directed to a situation where the s 99 power has not been engaged because the police officer has not formed the two relevant states of mind required by s 99 of LEPRA.

56. Unless and until that happens, the police officer does not have a power to arrest that person. Section 99 covers the field so that there are no other powers available to police officers, whether at common law or otherwise.

57. I think this conclusion accords with the structure of this part of the Evidence Act and the fact that it is protective. Again, it seems wholly inconsistent with that purpose that a person such as the Accused, who is suspected of criminal conduct, is afforded no protection at all just because a police officer has decided it is not necessary to arrest that person.

47. For those reasons, I consider s 139(2) was satisfied at the time and therefore, for the purpose of s 138(1)(a), there was a requirement to caution the Accused before asking him any questions.

Section 138 – “evidence in consequence of”

59. It is conceded on behalf of the Crown that, for the purpose of s 138, if, contrary to the Crown submissions, I am satisfied that the obtaining of the PIN code was an impropriety and I am so satisfied that all of the material on the phone was obtained, for the purpose of s 138(1)(b), in direct consequence of that impropriety and, accordingly, is prima facie inadmissible unless the desirability of admitting the evidence outweighs the undesirability of admitting the evidence because of the circumstances in which it was obtained. That involves an evaluative balancing exercise, taking into account the non-exhaustive list of matters identified in s 138(3) and any other relevant matter.

Should the evidence be admitted notwithstanding the improprieties?

60. There is no suggestion that DSC Y was acting anything other than honestly when he did what he did. There was debate before me as to whether his conduct fell within the lower end of what might be described as reckless conduct or the higher end of what might be described as negligent conduct.

61. I do not think ascribing some sort of tag to the conduct in that way is helpful. I prefer to deal with the matter by saying the impropriety was the consequence of a mistake, albeit a serious mistake, that ought not to have been made by such a senior officer.

62. As far as the importance of the evidence in the proceedings is concerned, the admissions themselves are not particularly critical. As I have already said, on behalf of the Crown it was submitted that the case was still a strong case without the admissions.

63. The evidence of what was on the phone is fundamental to the Crown's case, without which, the case will not be viable. It follows that the evidence is obviously highly probative and very important evidence in the proceedings which allege serious criminal conduct.

64. I have already dealt with the gravity of the impropriety or contravention and whether it was deliberate or reckless. I consider the mistake that was made to be serious. Police officers should understand with some clarity and precision how the legislation works, notwithstanding its awkward drafting. They most certainly should understand that the legislation is meant to be protective of suspects and, if in doubt, they should err in favour of providing people suspected of crimes with protections rather than not.

65. I very much doubt that any disciplinary or other proceedings will be taken against the police officer as a result of the impropriety or contravention.

66. That disposes of all of the non-mandatory criteria in s 138(3) other than the last one which is “the difficulty (if any) of obtaining the evidence without impropriety or contravention of an Australian law.”

67. If not for this consideration, I would exclude the evidence.

68. However, I am satisfied, and it is common ground, that the police were entitled to seize the phone in any event. Second, and again it is common ground, if after proper caution and advice the Accused refused to provide the PIN code, the police would have undoubtedly applied for and obtained a warrant under the relevant legislation requiring him to provide such information. Whether he complied with that warrant or not is another thing, but I think, on balance, he probably would have. Finally, the evidence before me was that it was possible that the Cellebrite system could obtain access to the material even without the PIN code. I do not consider it probable on the evidence, but the possibility is a real one.

69. What all that means is that I am satisfied that there has been, and will continue to be, little, if any, difficulty in the police obtaining the same evidence by lawful and proper means.

70. I consider that fact and the centrality of the evidence to the proof of a serious crime to be the weightiest matters, and have determined, when weighing up all of the circumstances, that whilst under both ss 90 and 138 of the Evidence Act I consider the admissions as to ownership of the phone and the provision of the access code should be excluded, I am satisfied that the contents of the phone are admissible, notwithstanding those contents were obtained as a consequence of the contraventions I have identified.

71. For those reasons, my ruling is as follows:

1. Any answer to any question given by the Accused to police whilst at the hospital on 15 May 2024, to the effect that he owned the phone, had access to the phone, and/or knew its access code is to be excluded from evidence at his trial.

2. Otherwise, the evidence of what was on the phone is admissible.

72. Order that the names of the Accused and the NSW Police officer described as “DSC Y” be suppressed until the conclusion of the trial of the Accused and any appeal.

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Amendments

21 July 2025 - Corrected spelling of name of counsel

Decision last updated: 21 July 2025