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

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

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 Jane (a pseudonym)

Details

AGLC: R v Jane (a pseudonym) [2025] NSWDC 266
Case: [2025] NSWDC 266
Decision Date: 18 July 2025

CaseChat Overview and Summary

The case of R v Jane involved a dispute regarding the admissibility of evidence obtained from a mobile phone seized by police while the accused was hospitalised. The accused was not informed he was free to leave and consequently answered questions about the phone. The court was tasked with determining the proper interpretation of the phrase "the person has been informed that they are free to leave" in the context of section 110(c) of the Law Enforcement (Powers and Responsibilities) Act 2002 (LEPRA) and "an investigating officer who does not have the power to arrest" under section 139(2) of the Evidence Act 2008. The court had to decide whether the evidence obtained contravened these provisions and whether it should be excluded under sections 99 of LEPRA and 138 of the Evidence Act.

The court examined the language of the relevant sections and considered the context in which the evidence was obtained. It concluded that the phrase "the person has been informed that they are free to leave" requires more than merely being aware of the ability to leave; it necessitates an explicit statement of that freedom. Additionally, the court held that an investigating officer who does not have the power to arrest must ensure the individual understands they are free to leave before seeking answers. Since the accused was not explicitly informed of his freedom to leave, the evidence obtained in response to questions about the phone was deemed inadmissible. However, the court found that the content of the phone itself, not obtained in response to questions, could be admissible.

The court's reasoning led to the conclusion that specific answers given by the accused regarding ownership, access, and knowledge of the phone's access code must be excluded from the trial. This exclusion was necessary to uphold the integrity of the legal process and ensure compliance with the statutory provisions. The court, therefore, ordered the exclusion of these specific answers but allowed the broader evidence from the phone to be admitted. This decision balanced the need to protect individual rights with the requirements of obtaining relevant evidence.

Orders

Orders of the court

(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.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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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.