R v Mohamed, Chaarani and Moukhaiber (Ruling 2)

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S CR 2018 0068

S CR 2018 0069
S CR 2018 0070

THE QUEEN
v
AHMED MOHAMED, ABDULLAH CHAARANI & HATIM MOUKHAIBER	Accused

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JUDGE:	Tinney J
WHERE HELD:	Melbourne
DATES OF HEARING:	6, 13, 14 & 18 February 2019
DATE OF RULING:	18 February 2019
CASE MAY BE CITED AS:	R v Mohamed, Chaarani & Moukhaiber (Ruling 2)
MEDIUM NEUTRAL CITATION:	[2019] VSC 72

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CRIMINAL LAW – Evidence – Mobile phone seized under warrant in 2016 (‘2016 phone’)– Whether seizure lawful – Whether tainted by allegedly unlawful arrest – Whether police authorised to examine full contents of phone – No illegal or improper behaviour by police – Evidence of 2016 phone admissible - PIN number for another phone (‘2017 phone’) provided by accused after shown order under s 3LA of Crimes Act 1914 (Cth)– Whether order had lapsed – Whether police required to inform accused of rights before asking for PIN – No requirement to inform of rights – On assumption s 3LA order had lapsed, s 138 of Evidence Act 2008 considered – Evidence of 2017 phone admitted - Crimes Act 1914 (Cth) ss 3E, 3F, 3K, 3LA, 23B, 23F, 23G; Evidence Act 2008 (Vic) s 138.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr N Robinson QC with Mr A Sim	Commonwealth Director of Public Prosecutions
For the Accused Mohamed	Mr J Kelly SC with Mr M Page	Leanne Warren and Associates
For the Accused Chaarani	Mr P Tehan QC with Mr L Richter	James Dowsley and Associates
For the Accused Moukhaiber	Ms F Gerry QC with Mr J Anderson	Stary Norton Halphen

HIS HONOUR:

Introduction

The first two accused are before the Court facing charges in relation to the attempted destruction by fire and then the successful destruction by fire of a mosque in Fawkner. The third accused faces only the charge in relation to the completed act. The charges on the indictment are charged as attempting to engage in a terrorist act and engaging in a terrorist act respectively.

Ms Gerry QC for the accused Moukhaiber has sought the exclusion of certain evidence pursuant to section 138 of the Evidence Act 2008. The evidence the subject of this ruling is material found by police on two mobile telephones seized from the accused on two separate occasions.

I will shortly set out some brief facts surrounding the seizure of the two telephones. As for the broader facts of the case, there is no need to set them out in this ruling, although I will touch on some of them when the need arises. A brief summary of the facts can be found in an earlier ruling I made in this case on 4 February 2019.[1]
[1]Mohamed, Chaarani & Moukhaiber (Ruling 1) [2019] VSC 26.

The facts

The terrorist act with which the third accused has been charged was allegedly carried out on 11 December 2016.

At about 7.48 pm on 22 December 2016, a Toyota sedan motor vehicle YFD 290 being driven by the accused Mohamed and containing the other two accused was intercepted by police in Springvale. All three men were removed from the vehicle in circumstances illustrated to an extent by the audio recording of the arrest which was played to the Court.[2] The first two accused were arrested and have remained in custody since that time. The third accused was detained by police for a period of 90 minutes before being released.
[2]Exhibit C.

The vehicle was searched pursuant to a warrant issued under section 3E of the Crimes Act 1914 (‘the Act’).[3] Three mobile telephones were located in the vehicle and seized. One of these telephones was sitting on the rear seat of the vehicle. It was an LG mobile telephone belonging to the accused. (‘the 2016 phone’).
[3]Exhibit F. A copy of the warrant is annexed to this ruling.

As already indicated, the accused was released 90 minutes after the interception of the vehicle on 22 December 2016 and permitted to depart the scene, which he did without his phone. I will say more about this presently.

On 19 August 2017 at about 9.20 pm, the accused was arrested by police at a Hungry Jacks Restaurant in Coolaroo driving a white Toyota Tarago vehicle. Later his vehicle was searched pursuant to a named person warrant issued under section 3E of the Act. A white Apple iPhone belonging to him was seized by police (‘the 2017 phone’).

The accused was subsequently taken to the headquarters of the Australian Federal Police. He was served with an order under section 3LA of the Act. Upon being asked to provide the PIN of the phone, he complied with the request.

The defence application in a nutshell

In respect of the 2016 phone, Ms Gerry asserted that because the accused’s phone did not come within the terms of all three conditions of the search warrant in question, the seizure of his phone was unlawful, as was the obtaining of evidence which was on the phone. Ms Gerry submitted that in a number of respects, the conduct of the police in connection with the arrest or detention of the accused and the execution of the warrant, was unlawful and unreasonable.

In respect of the 2017 phone, Ms Gerry submitted that the section 3LA order pursuant to which the PIN of the phone was obtained had lapsed. For that reason, and also because of the failure of the police to provide the accused with his legal rights prior to asking him for the PIN, the obtaining of the PIN from the accused was unlawful and unfair. As a result, it was submitted, the obtaining of the evidence on the phone was also unfair and illegal.

It was further submitted that in respect of both phones, once the police had the phones and had gained access to them, that because of the particular nature of mobile phones, it was not properly open to the police to simply download all of the contents, as was seemingly done.

In respect of both phones, it was submitted on behalf of the accused that the evidence should be excluded under section 138 of the Evidence Act 2008.

The law

Section 138 of the Evidence Act 2008 relevantly provides:

(1) Evidence that was obtained –
(a) improperly or in contravention of an Australian law; or
(b) in consequence of an impropriety or of a contravention of an Australian law –
is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained.

…
(3) Without limiting the matters that the court may take into account under subsection (1), it is to take into account –
(a) the probative value of the evidence; and
(b) the importance of the evidence in the proceeding; and
(c) the nature of the relevant offence, cause of action or defence and the nature of the subject-matter of the proceeding; and
(d) the gravity of the impropriety or contravention; and
(e) whether the impropriety or contravention was deliberate or reckless; and
(f) whether the impropriety or contravention was contrary to or inconsistent with a right of a person recognised by the International Covenant on Civil and Political Rights; and
(g) whether any other proceeding (whether or not in a court) has been or is likely to be taken in relation to the impropriety or contravention; and
(h) the difficulty (if any) of obtaining the evidence without the impropriety or contravention of an Australian law.

Section 3E of the Crimes Act 1914 relevantly provides:

(1) An issuing officer may issue a warrant to search premises if the officer is satisfied, by information on oath or affirmation, that there are reasonable grounds for suspecting that there is, or there will be within the next 72 hours, any evidential material at the premises.
…
(5) If an issuing officer issues a warrant, the officer is to state in the warrant:
(a) the offence to which the warrant relates; and
(b) a description of the premises to which the warrant relates or the name or description of the person to whom it relates; and
(c) the kinds of evidential material that are to be searched for under the warrant; and
(d) the name of the constable who, unless he or she inserts the name of another constable in the warrant, is to be responsible for executing the warrant; and
(e) the time at which the warrant expires (see subsection (5A)); and
(f) whether the warrant may be executed at any time or only during particular hours.

(6) The issuing officer is also to state in a warrant in relation to premises:
(a) that the warrant authorises the seizure of a thing (other than evidential material of the kind referred to in paragraph (5)(c)) found at the premises in the course of the search that the executing officer or a constable assisting believes on reasonable grounds to be:
(i) evidential material in relation to an offence to which the warrant relates; or
(ii) a thing relevant to another offence that is an indictable offence; or
(iii) evidential material (within the meaning of the Proceeds of Crime Act 2002) or tainted property (within the meaning of that Act);
if the executing officer or a constable assisting believes on reasonable grounds that seizure of the thing is necessary to prevent its concealment, loss or destruction or its use in committing an offence; and

(b) whether the warrant authorises an ordinary search or a frisk search of a person who is at or near the premises when the warrant is executed if the executing officer or a constable assisting suspects on reasonable grounds that the person has any evidential material or seizable items in his or her possession.

(7) The issuing officer is also to state, in the warrant in relation to a person:
(a) that the warrant authorises the seizure of a thing (other than evidential material of the kind referred to in paragraph (5)(c)) found, in the course of the search, on or in the possession of the person or in a recently used conveyance, being a thing that the executing officer or a constable assisting believes on a reasonable grounds to be:
(i) evidential material in relation to an offence to which the warrant relates; or
(ii) a thing relevant to another offence that is an indictable offence; or
(iii) evidential material (within the meaning of the Proceeds of Crime Act 2002) or tainted property (within the meaning of that Act);
if the executing officer or a constable assisting believes on reasonable grounds that seizure of the thing is necessary to prevent its concealment, loss or destruction or its use in committing an offence; and

(b) the kind of search of a person that the warrant authorises.

Section 3F of the Act relevantly provides:

(1) A warrant that is in force in relation to premises authorises the executing officer or a constable assisting:
(a) to enter the warrant premises and, if the premises are a conveyance, to enter the conveyance, wherever it is; and
(b) to search for and record fingerprints found at the premises and to take samples of things found at the premises for forensic purposes; and
(c) to search the premises for the kinds of evidential material specified in the warrant, and to seize things of that kind found at the premises; and
(d) to seize other things found at the premises in the course of the search that the executing officer or a constable assisting believes on reasonable grounds to be:
(i) evidential material in relation to an offence to which the warrant relates; or
(ii) evidential material in relation to another offence that is an indictable offence; or
(iii) evidential material (within the meaning of the Proceeds of Crime Act 2002) or tainted property (within the meaning of that Act);
if the executing officer or a constable assisting believes on reasonable grounds that seizure of the things is necessary to prevent their concealment, loss or destruction or their use in committing an offence; and

(e) to seize other things found at the premises in the course of the search that the executing officer or a constable assisting believes on reasonable grounds to be seizable items; and
(f) if the warrant so allows to conduct an ordinary search or a frisk search of a person at or near the premises if the executing officer or a constable assisting suspects on reasonable grounds that the person has any evidential material or seizable items in his or her possession.

(2) A warrant that is in force in relation to a person authorises the executing officer or a constable assisting:
(a) to search the person as specified in the warrant and things found in the possession of the person and any recently used conveyance for things of the kind specified in the warrant; and
(b) to:
(i) seize things of that kind; or
(ii) record fingerprints from things; or
(iii) to take forensic samples from things; found in the course of the search; and

(c) to seize other things found on or in the possession of the person or in the conveyance in the course of the search that the executing officer or a constable assisting believes on reasonable grounds to be:
(i) evidential material in relation to an offence to which the warrant relates; or
(ii) a thing relevant to another offence that is an indictable offence; or
(iii) evidential material (within the meaning of the Proceeds of Crime Act 2002) or tainted property (within the meaning of that Act);
if the executing officer or a constable assisting believes on reasonable grounds that seizure of the things is necessary to prevent their concealment, loss or destruction or their use in committing an offence; and

(d) to seize other things found in the course of the search that the executing officer or a constable assisting believes on reasonable grounds to be seizable items.

Section 3K(2) of the Act relevantly provides:

(2) A thing found at warrant premises, or a thing found during a search under a warrant that is in force in relation to a person, may be moved to another place for examination or processing in order to determine whether it may be seized under a warrant if:
(a) both of the following apply:
(i) it is significantly more practicable to do so having regard to the timeliness and cost of examining or processing the thing at another place and the availability of expert assistance;
(ii) the executing officer or constable assisting suspects on reasonable grounds that the thing contains or constitutes evidential material; or

...

Section 3LA of the Act relevantly provides:

(1) A constable may apply to a magistrate for an order requiring a specified person to provide any information or assistance that is reasonable and necessary to allow a constable to do one or more of the following:
(a) access data held in, or accessible from, a computer or data storage device that:
(i) is on warrant premises; or
(ia) is found in the course of an ordinary search of a person, or a frisk search of a person, authorised by a warrant under section 3E; or
(ii) has been seized under this Division;

...
(2) The magistrate may grant the order if the magistrate is satisfied that:
(a) there are reasonable grounds for suspecting that evidential material is held in, or is accessible from, the computer or data storage device; and
(b) the specified person is:
(i) reasonably suspected of having committed the offence stated in the relevant warrant; or
(ii) the owner or lessee of the computer or device; or
(iii) an employee of the owner or lessee of the computer or device; or
(iv) a person engaged under a contract for services by the owner or lessee of the computer or device; or
(v) a person who uses or has used the computer or device; or
(vi) a person who is or was a system administrator for the system including the computer or device; and

(c) the specified person has relevant knowledge of:
(i) the computer or device or a computer network of which the computer or device forms or formed a part; or
(ii) measures applied to protect data held in, or accessible from, the computer or device.

…
(5) A person commits an offence if:
(a) the person is subject to an order under this section; and
(b) the person is capable of complying with a requirement in the order; and
(c) the person omits to do an act; and
(d) the omission contravenes the requirement.
Penalty for contravention of this subsection: Imprisonment for 2 years.[4]

[4]The penalty has since been increased to imprisonment for 5 years.

Section 23B(6) of the Act provides:

(6) In this Part, a reference to questioning a person:
(a) is a reference to questioning the person, or carrying out an investigation (in which the person participates), to investigate the involvement (if any) of the person in any Commonwealth offence (including an offence for which the person is not under arrest); and
(b) does not include a reference to carrying out a forensic procedure on the person under Part ID.

Section 23F of the Act provides:

(1) Subject to subsection (3), if a person is under arrest or a protected suspect, an investigating official must, before starting to question the person, caution the person that he or she does not have to say or do anything, but that anything the person does say or do may be used in evidence.
(2) The investigating official must inform the person of the caution in accordance with subsection (1), but need only do so in writing if that is the most appropriate means of informing the person.
(3) Subsections (1) and (2) do not apply so far as another law of the Commonwealth requires the person to answer questions put by, or do things required by, the investigating official.

Section 23G(1) of the Act provides:

(1) Subject to section 23L, if a person is under arrest or a protected suspect, an investigating official must, before starting to question the person, inform the person that he or she may:
(a) communicate, or attempt to communicate, with a friend or relative to inform that person of his or her whereabouts; and
(b) communicate, or attempt to communicate, with a legal practitioner of the person’s choice and arrange, or attempt to arrange, for a legal practitioner of the person’s choice to be present during the questioning;
and the investigating official must defer the questioning for a reasonable time to allow the person to make, or attempt to make, the communication and, if the person has arranged for a legal practitioner to be present, to allow the legal practitioner to attend the questioning.

The evidence

Detective Sergeant Cameron Prins[5] was a Victoria Police member attached to the Joint Counter Terrorism Team (‘JCTT’) who was the coordinator in respect of the investigation known at Kastelholm 1[6] at the relevant time. By 22 December 2016, the investigation had reached the stage of the proposed arrest of the persons of interest, namely, the accused Mohamed and Chaarani, and two other men, Ibrahim Abbas and Hamza Abbas. A warrant was in existence authorising the search of the motor vehicle YFD 290.
[5]Evidence commences at 274.
[6]This operation concerned an investigation into the plan of four men, including the first two accused, to carry out a terrorist attack in the CBD of Melbourne. A trial was held before Beale J in 2018, following which, the three accused who stood trial were found guilty. A fourth man pleaded guilty to the crime.

Prins received notification that police had arrested the three accused.[7] He attended in the car park of a funeral home in Springvale to find the three accused each being held separately a short distance away from the vehicle. He did not know and was not told who had been seated in which location in the vehicle.
[7]In fact, only the first two accused were actually arrested. The third accused was removed from the vehicle and detained for a time before being released.

Prins conducted a visual search of the vehicle and observed three mobile phones. One was on the front passenger seat, one in the centre console, and one on the rear seat.

Believing the phones complied with all three conditions of the warrant, with which he was familiar, Prins seized them all.

One of the matters to which he had regard in making the decision to seize the phones was the fact that he had earlier been informed that the product of a listening device in the vehicle indicated the three men had been viewing a video in the vehicle seemingly containing extremist propaganda.

Prins was cross examined at some length by Ms Gerry as to his notes from the night in question and his actions on that night. He confirmed that by the time of the execution of the search warrant, the accused was not a person of interest, and he was not named in the warrant. Before his arrival he had been told that the first two accused and an unknown male were in custody, but on arrival he knew the third person to be the accused.

Prins gave evidence that the cable ties which were on the accused when Prins arrived were replaced with handcuffs, and then the point was reached where the accused was told he was free to go. He then departed the scene. By that time, Prins knew the accused had said he had possessions in the car but did not hear him ask to have his phone back. He did not know that the LG phone in the back seat of the car belonged to the accused. He had no note of having been told the positions of the various people in the vehicle, although he did reach an understanding that Chaarani had been the driver. It did not become apparent to him that the accused had been in the back seat.

Prins said that when he seized the three phones he was not aware whose phones they were.

As to what was done with the phones after seizure, he was not involved in that process. As far as he was concerned, however, once a phone had been seized under warrant, it would be examined.

If a phone did not belong to a person of interest, that would not matter. The warrant did not relate to an individual. Once an item had been seized under the warrant, having met the conditions of the warrant, it could be examined.

The witness agreed with Ms Gerry that he had made no mention in his notes of the reasons he had given in Court for having seized the accused’s phone. He stated he would not note such matters.

It was then put to him that the matters he had stated in his 2019 statement as to his reason for taking the accused’s phone were not actually operative on his mind at the time in 2016, and that he had made up things he thought would be sufficient to justify accessing everything on the accused’s phone. He refuted this serious allegation of impropriety.

The witness reiterated that once he was satisfied that an item such as the phone met the criteria of the warrant, then he would routinely seize such an item. He refuted the accusation, however, that in truth he had not actually thought at all at the time about whether he was justified in seizing the accused’s phone.

Detective Senior Constable Paul Ebinger[8] was another Victoria Police member who attended in Springvale shortly after the interception of the Toyota vehicle containing the three accused. He arrived at the location at about 9.10 pm and at that time, there were two males whose identities were unknown to him in the company of police. Shortly after his arrival at the scene the search warrant for the vehicle was signed over to him by Detective Senior Constable Brooke Ford, and he in turn later signed it over the Federal Agent Dale Brennan.
[8]Evidence commences at 314.

In cross examination, Ebinger stated that he knew that the vehicle was searched by Prins, but he was not actively involved in that process. He was given no information by Prins about the three telephones on the car. It was not part of his duties to note down what Prins was doing, or to get involved in the handling of the phones. As far as he was concerned, it was normal for the car to be searched in the circumstances.

Detective Senior Constable Brooke Ford[9] was a Victoria Police member attached to the JCTT. She gave evidence about events concerning the arrest of the accused on 19 August 2017, and also his detention on 22 December 2016.
[9]Evidence commences at 332.

On 19 August 2017, she attended the Hungry Jacks store in Roxburgh Park in company of Federal Agent Andrew Davies. Police were at the scene, along with the accused and two females.

Ford travelled to the AFP building with Davies, the accused, and another Federal Agent. Shortly after 10.00 pm, she heard Davies speak to the accused about a named person warrant and a section 3LA order. In respect of the latter, Davies said:

We were in a (sic) interview room and Federal Agent Davies, he explained he had in his possession a 3R (sic) warrant, which requires the accused to provide passwords for any electronic devices that police have seized…and that are relevant to the offence.[10]

[10]Transcript 333.

Following that, the accused gave his PIN to Ford. She in turn provided the PIN to Federal Agent Martine Gale who had the phone. She confirmed the PIN worked, and Ford passed that information onto Davies.

As for 22 December 2016, on that day Ford attended in Springvale with other members. She observe a red vehicle on her arrival, a number of police, and three people who were separated, one of them being the accused. She was directed to the accused. She advised him that police were making enquiries into his involvement in a serious offence, in respect of which the other two had been arrested. The accused was in cable ties when she arrived, which were later changed to hand cuffs for reasons of comfort.

Ford attested that at about 8.30, she asked the accused if he would like to pray. He declined. Shortly after this, he informed her his white LG phone was in the back seat of the vehicle. She told him he would not be able to retrieve his phone, as there was a search warrant for the car, and they were waiting for forensics.

At 9.20 pm, the accused was advised he was free to leave. He departed the scene after that.

In respect of the warrant, Ford said that at 8.51 pm, the warrant was signed over to her by Detective Senior Constable Tony Myers. She signed it over to Ebinger at 9.11 pm.

In cross examination, Ford gave further evidence about the events of 17 August 2017. She said that at 10.14 pm at Federal Police Headquarters, Agent Davies ‘explained to Moukhaiber his caution and rights’. By implication, the evidence of Ford was that this occurred after the PIN had been provided by the accused.

As for the 2016 events, she said that while she was with the accused, Prins was available for her to talk to. When the accused spoke to her about where he and the others had been heading when intercepted, however, she could not recall where Prins was. She was not keeping an eye on his location. She did not pass on details of the conversation to Prins. She did not recall relaying the information as to the location of the accused’s phone in the vehicle to Prins. At some point, she did tell him the phone of the accused was in the car, but she did not know when. When the accused was advised he was free to leave, he asked to have his phone back. Ford stated she would have relayed the fact of that request having been made to Prins, and she was told he could not have the phone. When she handed the warrant over to Ebinger, she did not inform him that the accused’s phone was in the back seat.

Federal Agent Andrew Davies[11] was a part of the Operation Kastelholm team, and is the informant in respect of the accused. He applied for a named person 3LA order in respect of the accused on 15 August 2017.
[11]Evidence commences at 353.

On 19 August 2017, Davies attended at the Hungry Jacks store in Coolaroo at 9.25 pm. He there saw the accused, who had already been detained by police. He arrested the accused and informed him of the reason for the arrest, and that he would be conveyed to the AFP Melbourne Office. He also cautioned him. He took him back to the office in company with Ford, arriving at about 10.00 pm.

Shortly after their arrival, and while the accused was seated in an interview room, Davies provided him with a section 3 Crimes Act warrant to search his person, and a section 3LA order addressed to him. Davies attested that he did this to enable the accused to read them.

Davies said in evidence that prior to inviting the accused to read the documents, he again cautioned him, and this time told him of his rights ‘in accordance with part 1C’. He then invited him to read the documents and ask any questions he wanted to in explanation of the documents. In respect of the 3LA order, Davies said he explained it was a request to provide assistance to access his mobile phone.[12] The accused had no questions about the documents.
[12]On the understanding of Davies, which I take to be correct, this phone had been taken by police from the vehicle in which the accused had been arrested.

In response to the request as set out in the document, and made by Davies, the accused then provided the PIN for the phone. Davies relayed the PIN to Ford and it was subsequently communicated to him that the PIN was correct.

In the interview which was subsequently conducted, there was some mention made of the 3LA document and the warrant, and the accused indicated he had nothing to ask about either of them.

In cross examination, the witness denied he had used words indicating to the accused that the 3LA document ‘required him to provide’ the password, or that a magistrate had made an order that ‘requires you to give me your password’.[13] He said he spoke more in terms of asking for assistance to access the device.
[13]Transcript 361.

It was put to Davies that he had not provided the caution and explained the rights to the accused until after the PIN was provided. Davies repeatedly refuted this contention.

In re-examination, Davies stated that during the interview, the accused showed he had a reasonable understanding of the two documents which had been provided to him.

In response to questions from me, Davies indicated that the accused appeared to read the 3LA order when it was given to him. He never expressed any reluctance or confusion about what he was being asked to do.

Accused’s submissions

The submissions to be made on behalf of the accused were originally set out in an outline filed on 22 January 2019. As a result of further consideration, and after seeking an adjournment of pre-trial submissions for a short time, counsel for the accused filed a subsequent Outline of Submissions dated 11 February 2019.[14] That outline ran to 29 pages in length, and as was confirmed by Ms Gerry in her submissions, took the place of the original outline in respect of the matters the subject of this ruling.
[14]Exhibit HM2 in the pre-trial proceedings.

Ms Gerry made oral submissions in support of many of the contentions contained in the outline, and relied on both her oral submissions and her latest outline.

It is beyond the scope of this ruling to set out each and every one of the submissions made on behalf of the accused, both in the outline and in oral submissions. To the best of my ability, I will set out the important contentions made. Before doing so, I note that the overall position of counsel was that all evidence derived from either of the phones seized from the accused should be excluded. As was asserted in the outline:

We submit that the actions of the police in relation to Mr Moukhaiber’s smart phones were unlawful to such an egregious extent, involving unlawful arrest and denial of rights, that the evidence obtained from both smart phones ought to be excluded.[15]

The 2016 phone

[15]Outline [4].

In respect of the 2016 phone, it was submitted that the seizure of the phone in the first place was unlawful, because it was not authorised by the section 3E warrant. This, so it was submitted, was because the phone did not meet two of the three conditions of the warrant. Conditions 2 and 3 were said not to have been satisfied.

It was further submitted that the seizure of the phone was not authorised by the incidental powers found in section 3F(d) of the act, or at common law.

In addition, it was asserted that ‘the seizure of the phone was directly or indirectly a consequence of Mr Moukhaiber’s unlawful purported arrest by police’.[16]

The 2017 phone

[16]Outline [7].

In respect of this phone, there was not said to be anything improper about its seizure. Rather, it was submitted that the status of the section 3LA order, which was asserted to have no effect once the phone was seized, and the asserted failure of the police to inform the accused of his right to speak to a lawyer prior to being asked to provide the PIN, meant that he was unlawfully required to provide the PIN, and his right to silence was unlawfully breached.

Both phones

In respect of both of the phones, it was submitted by Ms Gerry that the police were not entitled to carry out the detailed examinations of the phones actually carried out. In view of the particular nature of a smart phone, which can contain so much of importance in the life of its owner, it was not open to the police to do what they did, which was in effect to simply download and examine the full contents of the phones. Therefore, it was submitted, the material actually contained within the phones was unlawfully and improperly obtained, and should be excluded for that reason.

2016 phone – Unlawful purported arrest

It was submitted that it can be inferred from the audio of events played to the Court that after the vehicle in which he was travelling was intercepted by police at 7.49 pm, the accused was ordered to crawl out of the vehicle, and then his hands were bound with cable ties, later changed to hand cuffs. The accused was kept in custody from then until 9.20 pm, at which time he was informed he could leave. On the defence submission, in spite of the fact there was no warrant to arrest the accused, he was treated, like the other two men, as if he was under arrest. In his case, this was the situation for approximately one and a half hours.

Even if the accused was not actually arrested, which would not have been permitted by law, he was unlawfully detained throughout the relevant period. He was not free to take his personal items, including the phone, with him as he exited the vehicle. Nor, indeed, was he permitted to take the phone when he was eventually released.

On the defence submission, the seizure of the accused’s phone was a direct, or at least, an indirect, consequence of a ‘serious and egregious contravention of Australian law’[17] in relation to the treatment of persons who are not suspects or even persons of interest under a warrant. To admit the evidence contained in the phone in the circumstances, it was submitted, ‘would be to undermine the rule of law in relation to the detention and treatment of members of the public’.[18]
[17]Outline [13].
[18]Outline [13].

When asked about the relevance of what she had asserted was the unlawful or improper arrest or detention to the question of whether or not the seizure of the 2016 phone was lawful or unlawful, Ms Gerry submitted that the manner in which the accused was detained and secured and held, ‘that led to his telephone firstly being in the car but then secondly being taken by the police, is inextricably linked to the unlawfulness of the whole procedure’.[19]
[19]Transcript 433.

Ms Gerry asserted that there was no arrest power, and that ‘one cannot divorce the manner in which at gunpoint that Mr Moukhaiber was ordered to leave the vehicle, from the exercise of judgment that member of the executive, a police officer, has to exercise’.[20] A little later she submitted, ‘one cannot extricate the events of his detention from the decision to keep his phone’.[21] She went as far as to assert that, but for the unlawful detention of the accused, he would’ve been entitled to walk away from the scene with his phone.
[20]Transcript 448.
[21]Transcript 478.

Ms Gerry submitted that the unlawful arrest or detention was also relevant to a consideration of the question of whether the executing officer, Prins, behaved reasonably during the course of the search and seizure, something counsel asserted was a requirement which applied to him. She further submitted that the circumstances of the unlawful detention would assist me in rejecting the evidence of Prins about the suspicion he had formed, and his contention that he did not know which phone belonged to which person.

2016 phone – Attack on evidence of Detective Sergeant Prins

Mr Gerry strongly attacked the conduct of Prins, and his evidence in this court. In respect of the former, she asserted he had been a party to the continuing unlawful detention of the accused, and had not behaved reasonably in the execution of the warrant or in simply permitted someone else to examine the entirety of the phone. In respect of the latter, counsel impugned the truthfulness of the witness in respect of his claimed thought processes at the time of seizing the phone of the accused, and his lack of knowledge of the ownership of the phone. Ms Gerry submitted that Prins had behaved inappropriately and unlawfully, and deliberately so. She labelled his behaviour, on repeated occasions during her submissions, as ‘egregious’.

2016 phone – Condition 2 not satisfied

It was submitted that, insofar as the 2016 phone was concerned, Condition 2 of the warrant was not satisfied. It was perfectly plain on the face of the warrant, submitted Ms Gerry, that what was being searched for was items relating to the six persons named in Condition 2, who were the persons of interest in relation to the offence which was being investigated. The word ‘relates’ as it appeared in the warrant ‘had to do more work’ than was being asserted by the prosecution. The word meant, ‘relates to those person who are under investigation’.[22] The phone belonged to, and related to, the accused. It was not ‘related’ to either of the other accused, the vehicle in which it was found, or any other item listed in Condition 2.
[22]Transcript 441.

It would significantly strain the meaning of the word ‘relate’ to say that the phone ‘related’ to any of the people or other things listed in Condition 2. Any relationship asserted by the prosecution would be far too tenuous to constitute the necessary relationship required by the warrant.

Ms Gerry invited me, when construing the meaning of ‘related’, to have regard to the personal nature of the modern smart phone. In that context, she referred me to the decision of the Supreme Court of the United States in Riley v California,[23] in which the Court considered the unique personal status of smart phones.
[23]573 US 321 (2014).

Ms Gerry submitted that in circumstances where the conditions of the warrant were not met here, ‘the effect was of a warrantless seizure’.[24] She submitted that in circumstances where smart phones contain so much personal information, the terms of the warrant should be strictly construed. The geographical nexus in location between the vehicle and the phone, and the association with the other two in the car, did not establish a sufficient relationship.
[24]Outline [29].

Ms Gerry submitted that interpreting the warrant too broadly would risk the situation where it would become increasingly unlikely that the scope of the search and seizure would have been in the contemplation of, and authorised by, the issuing officer, namely, the magistrate.

Ms Gerry referred, seemingly in passing, to the doctrine of the separation of powers, in justification for her contention that the warrant needed to be executed strictly in accordance with its terms. The admission of evidence obtained outside those terms would undermine the rule of law.

Insofar as Prins indicated in his most recent statement in February 2019 that he ‘reasonably believed that each phone satisfied the three conditions of the warrant’, the test was whether Condition 2 was satisfied, not whether Prins reasonably believed it was.[25] In any case, insofar as Prins stated in respect of Condition 2 that he was satisfied that the phone related to the other two accused, the vehicle, and to IS, ISIS, ISIL, and Syria, that would have been an unreasonable and illogical belief to have reached in light of the facts.

2016 phone – Condition 3 not satisfied

[25]Outline [35] – [36].

Ms Gerry submitted that in considering whether the phone came within Condition 3 of the warrant, I needed to focus on Prins’ state of mind, namely, whether or not he believed at the time of seizure that there were reasonable grounds for suspecting the phone would afford evidence as to the commission of the named criminal offences. She submitted that what was required from me was ‘an objective assessment of the subjective thinking of the officer’.[26]
[26]Transcript 463.

Relying, in part, on what was said in Slaveski v State of Victoria and Ors,[27] and the cases cited therein,Ms Gerry asserted that the relevant time for the requisite belief to be held by the seizing member was the time of seizure of the item.
[27][2010] VSC 441.

Counsel pointed out that Prins had advanced two reasons during his pre-trial evidence for his state of mind which would have justified seizure of all three phones in the vehicle such that Condition 3 of the warrant would be satisfied. These were, first, that he did not know to whom the three phones belonged, and therefore, the accused’s phone might have belonged to one of the other accused, and secondly, that he had received intelligence that IS propaganda was being listened to in the vehicle prior to the interception and he did not know on which phone it was played.

Ms Gerry invited me to reject the evidence of Prins in respect of these two matters, for reasons she advanced in detail in the outline and in her submissions.

In the alternative, Ms Gerry submitted that if Prins did have the state of mind referred to in paragraph 81, then for reasons again advanced in the outline and in submissions, such a state of mind would not be reasonable.

In apparent connection with that contention, Ms Gerry advanced detailed submissions as to why I should be satisfied Prins had been informed of the accused’s ownership of the LG phone before the accused’s departure from the scene. Furthermore, reasonable enquiries would have enabled him to ascertain the ownership of the three phones.

Ms Gerry invited me, when considering the reasonableness of the search and the decision to seize the phone, to have regard to the fact that the procedure possible under section 3K of the Act was not followed. The phone was seized without any examination of its contents to confirm ownership and to see whether it had been used to play the IS propaganda video. According to the submission, such a targeted search would have indicated no basis for seizure of the phone. She pointed out that the video in question was, in fact, located on the accused Chaarani’s phone.

2016 phone – Power under section 3F(d) and at common law

Ms Gerry submitted that there are limits to the search powers incidental to the warrant, as pointed out in Ghani & Ors v Jones.[28] She went on to submit that insofar as this warrant related to smart phones, it was relevantly directed towards the seizure of phones belonging to suspects. To the extent the warrant authorised the searching of phones other than those belonging to the other two accused, the power should be limited to establishing whether a phone in fact belonged to either of them.
[28][1970] 1 QB 693.

Ms Gerry submitted the incidental powers would not justify the seizure of the LG phone and the full examination of its contents.

Ms Gerry further submitted that the seizure of items under section 3F or at common law would be subject to the seizing member possessing a reasonable belief that the relevant item contained evidence of an offence. Prins did not assert any such belief. Even if he had, any such belief would be unreasonable.

In connection with Condition 3, as with Condition 2, Ms Gerry repeatedly emphasised that search warrants are required by law to be executed strictly in accordance with their terms. This warrant was not. Furthermore, there was an obligation on the executing member to act reasonably. He did not. His conduct, she asserted, was ‘unlawful, not reasonable, and egregious’.[29]

2017 phone – Obtaining of PIN

[29]Transcript 476.

Ms Gerry submitted that the power granted by section 3LA of the Act is very wide, and that the only safeguard is the opportunity to speak to a lawyer. In respect of the 2017 phone, Ms Gerry submitted, as set out in paragraph 70 of the outline, that:

a.The section 3LA warrant was stale at the time investigators provided it to Mr Moukhaiber. Following seizure of the iPhone investigators were required under the Act to obtain a new 3LA warrant;
b.Mr Moukhaiber was not given his caution and rights prior to being questioned as to the PIN on the iPhone;
c.While the 3LA on its face required Moukhaiber to divulge his PIN, he was still faced with a choice as to whether or not he ought comply. Speaking to a lawyer would assist him making that choice, hence it is a mandatory and fundamental safeguard;
d.Breaching fundamental mandatory rights is so egregious that evidence which flows from such a breach ought not to be admitted.

As to the first matter, Ms Gerry submitted that section 3LA(3) of the Act dictated that the 3LA order ceased to have effect after the phone was seized. The police were at liberty to apply for a new order. They did not do so. As a consequence, the accused was misled as to his obligations, which fact was made all the more egregious because he had not had his rights explained to him before the request for the PIN was made.

In support of the contention contained in Part (b) in paragraph 84, Ms Gerry noted there was a factual dispute as to whether or not Davies explained the accused’s rights to him, including the right to speak to a lawyer, before he showed him the section 3LA order and asked for the PIN. As I perceived it, the dispute was said to be between Davies and Ford, rather than between Davies and the accused, who, I should indicate, gave no evidence on the matter. The evidence of Davies was that he provided a caution and rights to the accused at the AFP headquarters immediately before obtaining the PIN from the accused. On the other hand, the evidence of Ford, as counsel put it, was that the caution was not given nor the rights explained until 10.14 pm, by which time the PIN had already been provided by the accused. I was urged to prefer the evidence of Ford for reasons elaborated on by counsel. Indeed, counsel went as far as to assert that Davies was ‘slippery’ with the chronology he gave.[30]
[30]Transcript 494.

In connection with Parts (c) and (d) of paragraph 90, Ms Gerry submitted that whilst section 23F(3) of the Act dictated that the obligation to caution under section 23F(1) did not apply in this case, the duty to inform a person of his or her right to communicate with a legal practitioner under section 23G was not qualified in the same way. She submitted that the provision is expressed in mandatory and unambiguous terms. It followed that there was a legal obligation on the police to inform the accused of his right to communicate with a lawyer before questioning him as to his PIN. Davies did not comply with this requirement and the questioning about the PIN was therefore unlawful.

I pointed out to counsel that there may be a fundamental problem in her submission, based on section 23G, that the explanation of rights to the accused was mandatory in this case, bearing in mind the meaning of ‘question’ as used in the section. Ms Gerry submitted that what was taking place when the police asked the accused for his PIN did amount to questioning as defined in section 23B(6) of the Act. She submitted that the request for the PIN was inextricably linked with the investigation of whether the accused was involved in a crime. Furthermore, the giving over of the PIN itself was incriminating.

Ms Gerry characterised the behaviour of Davies in failing to explain the rights to the accused and in relying on a lapsed section 3LA order as being egregious, shocking, and outstandingly bad.[31] This was so, she submitted, even if his failings were honest mistakes.

Section 138 assessment

[31]Transcript 510.

In dealing with the various consideration under section 138 of the Evidence Act 2008, Ms Gerry, whilst acknowledging the probative value of the material from the 2016 phone, questioned the probative value of the material from the 2017 phone, in light of a number of matters, including the date of the seizure of the phone. She submitted that evidence would not be very important in the case.

In respect of section 138(3)(c), counsel contrasted the offence alleged here with a terrorism offence which leads to loss of life. She directed me to cases where there had been references to victimless crimes, without expressly adopting that description herself in respect of this case. Here, she submitted, a building had been destroyed, leading to an insurance claim. Having said that, Ms Gerry did acknowledge, in response to a direct question from me, that the criminal offence here was an extremely serious one.

In respect of the consideration in section 138(3)(e), Ms Gerry submitted that in the case of Prins, the contraventions were deliberate, whereas in the case of Davies, they were ‘probably reckless’.[32]
[32]Transcript 527.

In the end, it was the submission of Ms Gerry that a consideration of all the relevant matters here should lead me to exclude all of the evidence obtained from each of the phones pursuant to section 138 of the Evidence Act 2008.

Prosecution submissions

Written submissions were filed on behalf of the Crown,[33] following on from an earlier outline which dealt with these and other matters. For the most part, I rely on the later written submissions and the oral submissions made by Mr Robinson, although I note that the earlier outline contains reference to cases cited in connection with the section 138 task I may be required to embark upon.
[33]Exhibit N.

Mr Robinson submitted that mobile telephones stand in no different position for the purposes of the search and seizure laws than do any other electronic storage devices. Furthermore, the question whether the 2016 phone fell within the conditions of the warrant was unaffected by issues of ownership.

Mr Robinson commenced, in his oral submissions, with an exposition of section 3E and F of the Act. He submitted that if an item complied with all of the conditions of a warrant – in the case of the warrant in this case, all three conditions – it was able to be seized. There is no requirement that the person seizing the item hold any suspicion for the purposes of executing the warrant. The question for the Court is whether or not a particular item objectively falls within the three conditions of the warrant. It has nothing to do with the state of mind of the seizing person. Having said that, the position of the prosecution was that Detective Sergeant Prins acted ‘upon reasonable suspicion that the LG phone in the vehicle met each condition’.[34]
[34]Outline [1].

In the case of the 2016 phone, it did meet all three conditions of the warrant. As a result, it was lawfully seized. That was the central position of the prosecution.

Mr Robinson drew to my attention the content and purpose of section 3K of the Act, which would permit a member of the police force to move a collected item to another location in order for it to be further examined to reveal whether or not it was a seizable item under the warrant.

Mr Robinson submitted that although in the case of the 2016 phone, Prins purported to seize it, that was not actually a seizure for the purpose of the warrant, but rather, it was an instance of Prins acting under section 3K(2) to move the phone for further examination. This could be so in spite of the fact that Prins may not have thought he was acting under that provision. He had the power to move the phone under section 3K, in view of the fact he had the requisite suspicion that the phone would constitute evidential material. There was no requirement that Prins seek to open and copy the phone at the place of interception of the vehicle. Nor was there any requirement to establish whose phone it was before examining it to see if it met the three conditions. The phone was taken to be further examined. There was nothing unlawful about what Prins did.

Mr Robinson pointed out that, insofar as one of the matters contained in Condition 2 of the warrant was, ‘Imam Ali Islamic Centre, 90-92 Lowson Street Fawkner’, the phone contained within it, evidence of searches having been made on the phone in respect of reports about the fire at that mosque.

Mr Robinson did not take issue with the defence submission that the authorities dictate that warrants should be read and applied strictly.

The prosecutor took issue with Ms Gerry’s contention that the warrant required a connection between items and one or other of the named people in the warrant before the second condition could be satisfied. The warrant should be read in the terms in which it was drafted, in accordance with authority.

Insofar as the defence had submitted that the warrant was not directed at the accused, and that he was not a person of interest, those matters were irrelevant, it was submitted.

As to the meaning of ‘relate’ in the Second Condition of the warrant, that word was an ordinary English word used in its ordinary sense.

In respect of the defence contention that, once the phone had been seized, the police were not empowered to access the full contents, in light of the nature of a smart phone as an item, there was nothing in section 3E of the Act or the related provisions, or in the authorities relied upon by the defence, that supported that contention. So long as an item seized under the warrant satisfied all three conditions of the warrant, it was able to be assessed for its evidentiary value.

On the issue of the arrest or detention of the accused, and whether this was unlawful, Mr Robinson said that question was irrelevant to the question of whether the warrant was properly executed. Even had the arrest or detention been unlawful, that would have no bearing on the lawfulness of the seizure of the phone.

On this topic, Mr Robinson went further to submit that the defence had the onus of establishing the arrest was unlawful, and they had not done so. He also pointed to section 458 of the Crimes Act 1958 (Vic), as containing a lawful basis for the arrest of the accused in this case. He submitted that the actions of those who intercepted the car and removed and detained those who had been in the car, were lawful and appropriate. They were making the scene safe for members of the public, the police, and the detained persons themselves.

In respect of the 2017 phone, counsel submitted that the request for the PIN was not questioning within the definition of that term in the Act, and therefore the statutory obligation to advise an accused of his rights did not arise.

Furthermore, it was submitted that I should not reject the evidence of Davies of having provided the rights in any event. On that score, Mr Robinson pointed to the absence of any evidence from the accused, who, had he not had his rights explained to him at that point, as Davies had attested, could have given evidence himself on the matter.

In respect of the defence contention that the 3LA order had ceased to have effect by the time of the request for the PIN because of the operation of section 3LA(3), Mr Robinson submitted that the phone had not been seized at the time the request was made, and therefore, the order continued to have effect. He developed an argument in support of that contention, which was, in effect, that in spite of the fact that the police member who had, in fact, removed the phone from the car, had described having ‘seized’ the phone, she had not done so. The meaning of seizure under the section was not merely, ‘taken’. So to construe it would render the provision nonsensical. ‘Seizure’ must mean ‘seizure under the Act’, within the terms of section 3F(c) of the Act, and that would not occur unless there had been satisfaction that the item met all the requisite conditions of the warrant. This was another case where the phone had been taken by police for movement to another location where its contents could be checked, in order to ascertain whether it was seizable.

Mr Robinson acknowledged that on any view, sub-section (3) represented ‘a peculiar piece of drafting’. He also advanced an explanation of its purpose.

Mr Robinson, in response to a question from me, indicated that his enquiries suggested that it was commonplace for 3LA orders to be sought in advance of the execution of warrants in which it was expected electronic items may be found. In spite of that, there was no authority Mr Robinson, or for that matter, Ms Gerry, pointed to, in which a court had considered the meaning of the sub-section.

When asked whether, should I find the 3LA order to have lapsed at the time of the request, it would be reasonable to conclude that Davies considered he was doing the right thing, Mr Robinson assented to the proposition. He also pointed out that there was no evidence that Davies was aware at the time of the request that the phone had been taken from the car. He further asserted that had he known of any deficiency in the order, it would have been a simple matter to make a further application to the court.

Mr Robinson submitted that, contrary to the submissions of Ms Gerry, everything about this aspect of the case ‘reflects a bona fide belief that what he was doing was in accordance with law’.

Turning to the considerations under section 138 of the Evidence Act 2008, should I come to consider them, Mr Robinson took me through these in some detail, which it is not necessary to repeat here. In brief terms, he submitted, amongst other things, that:
·     Both phones contained material of high probative value;
·     The evidence on the 2016 phone is very important in the Crown case, whereas the evidence on the 2017 phone could be described as being important;
·     As to the nature of the offence, it was a completed terrorist act, rather than something in preparation. The maximum penalty is life imprisonment. Notwithstanding the fact that more serious offences might be imagined, this crime was a very serious one;
·     In the case of each phone, any impropriety or unlawfulness should be viewed as being at a low level;
·     None of the asserted unlawfulness was the result of deliberate or reckless conduct. Rather, it should be seen as being the result of bona fide mistake or inadvertence;
· In the circumstances, in respect of each phone, and acknowledging that the burden would be on the prosecution should I come to consider section 138, were I to come to carrying out the balancing exercise set out in that section, I should conclude that the evidence contained on each of the phones should be admitted.
Analysis
Introduction

No issue was taken in this case as to the validity of either of the warrants relied on by police in seizing the two phones, a matter which places this case in stark contrast with many of the authorities to which I have been referred. In respect of the 2017 phone, there was no contention that the seizure of the phone, whenever it occurred, was tainted by unlawfulness. As for the section 3LA order, again, there was nothing to suggest it was other than validly made by the magistrate in question.

Insofar as Ms Gerry strongly submitted that there needs to be strict compliance by those executing the warrant with the terms of the warrant, that is undeniably correct.[35]
[35]Allit v Sullivan [1988] VR 621, 638; Crowley v Murphy (1981) FLR 123, 152.

So, too, was her contention that police officers are required by law to act reasonably in the execution of a search warrant.[36]
[36]Ibid; Question of Law Reserved (No 1 of 1998) (1998) 70 SASR 281.

The type of three-condition warrant relied on by police for the seizure of the 2016 phone has long been the subject of discussion in the authorities, and has repeatedly been held to be valid. No issue arises as to validity in this case.

An important authority on the issue of the validity of search warrants is the judgment of the High Court in George v Rockett.[37] That case involved a consideration of section 679(b) of the Criminal Code (Qld), which was similar to the old section 10 of the Crimes Act 1914 (Cth), the forerunner of section 3A.
[37](1990) 170 CLR 104.

At 110-111 of George v Rockett[38], the Court[39] said:

A search warrant thus authorises an invasion of premises without the consent of persons in lawful possession or occupation thereof. The validity of such a warrant is necessarily dependent upon the fulfilment of the conditions governing its issue. In prescribing conditions governing the issue of search warrants, the legislature has sought to balance the need for an effective criminal justice system against the need to protect the individual from arbitrary invasions of his privacy and property. Search warrants facilitate the gathering of evidence against, and the apprehension and conviction of, those who have broken the criminal law. In enacting s 679 [of the Queensland Criminal Code], the legislature has given primacy to the public interest in the effective administration of criminal justice over the private right of the individual to enjoy his privacy and property. The common law has long been jealous of the prima facie immunity from seizure of papers and possessions…
State and Commonwealth statutes have made many exceptions to the common law position, and s 679 is a far-reaching one. Nevertheless, in construing and applying such statutes, it needs to be kept in mind that they authorise the invasion of interests which the common law has always valued highly and which, through the writ of trespass, it went to great lengths to protect. Against that background, the enactment of conditions which must be fulfilled before a search warrant can be lawfully issued and executed is to be seen as a reflection of the legislature’s concern to give a measure of protection to these interests. To insist on strict compliance with the statutory conditions governing the issue of search warrants is simply to give effect to the purpose of the legislation…

[38](1990) 170 CLR 104.

[39]Mason CJ, Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ.

In Grollo v Macauley (‘Grollo’)[40], the judgment of Justices Northrop and Ryan in the Full Court of the Federal Court, set out the principles of law, following on from what the High Court had said in George v Rockett[41], that would apply to a magistrate or justice issuing a warrant. In short, it was implicit in the old section 10 of the Act that the applicant for the warrant should entertain the suspicion that there would be items in the premises as to which there were reasonable grounds for believing the items would afford evidence of the commission of offences. If the magistrate to whom the application is made is satisfied that the material in the application is sufficient to induce the relevant suspicion and belief in a reasonable person, the warrant should be granted. As their Honours stated:

The officers executing the warrant must then exercise the power of deciding which of the things identified in condition one come within each other of the limitations contained in conditions two and three.[42]

[40](1995) 56 FCR 533 (‘Grollo’).

[41](1990) 170 CLR 104.

[42](1995) 56 FCR 533 [548].

Their Honours went on to say:

The search is wide but the power to seize is limited to those things which bear the necessary relation to the categories of offences identified.

Chief Justice Black, in his judgment in Grollo, stated:

In this case, too, the third condition in each of the warrants effectively limits their scope to things that were, as a matter of objective fact at the time the warrant was issued, things as to which there were reasonable grounds for believing that they would afford evidence of the commission of one or more of the offences described. The operation of the third condition does not depend upon the subjective opinion of the executing officer. As was pointed out in the joint judgment in Dunesky (at 556), if the executing officer seized things as to which the relevant reasonable grounds did not, objectively, exist, the seizure would not be authorised by the terms of the warrant.[43]

[43]Grollo (n 40) [536].

In Dunesky v Elder,[44] the Full Court of the Federal Court was again called upon to decide whether a search warrant issued under section 10 of the Crimes Act 1914 was validly issued. Justices Lockhart, Beaumont and Hill, in their joint judgment, dealing with the third condition of the three condition warrant in that case, had this to say:

Once more, the refining process takes us to the third condition. In this condition, we find a number of limitations. First, there must be reasonable grounds for believing that the thing will afford evidence as to the commission of one of the nominated offences alleged. It will be necessary to come soon to the way in which the alleged offences were described. But first, mention should be made of an argument that in this condition there is an impermissible attempt to delegate to the police officer a discretion to decide things which may be seized: (Citations omitted).
Section 10(1) requires that the requisite satisfaction, as Rockett decided, is that of the justice and not that of the executing officer. But, in our view, the third condition does not infringe this principle. Rather, in our opinion, by referring to ‘reasonable grounds’ of the kind specified, the condition makes it clear that the warrant is, in objective terms, limited to, and in accordance with, the conditions laid down by the provisions of s 10(1). In particular, its operation does not depend upon the subjective opinion of the executing officer. If the executing officer seizes things as to which the relevant reasonable grounds do not (objectively) exist, the seizure is not authorised by the terms of the warrant. The possibility that an executing officer may exceed or even misconstrue the terms of the warrant does not demonstrate that its terms are ‘too broad and uncertain’…
Moreover, as has been said, only those things which, objectively speaking, are able to satisfy, inter alia, these aspects of the statutory conditions may lawfully be seized by the police.[45]

[44](1994) 126 ALR 522.

[45]Ibid 536.

A contrary conclusion may be indicated by an earlier decision of Holland J in the Federal Court in Trimboli v Onley (No 3) (‘Trimboli’)[46] and the cases cited therein. In Trimboli, as noted by Kyrou J in Slaveski v State of Victoria and Ors[47], Holland J held that a police officer executing a search warrant issued under section 10 of the Act must believe on reasonable grounds that any items seized by him or her fall within the description in the warrant of items authorised to be seized. His Honour said that:

The belief must exist at every point at which lawfulness is claimed under the warrant for taking and keeping another’s property. It must exist contemporaneously with the act of seizure. Thereafter it must exist at least whenever it is sought to justify retention of the property under the warrant.[48]

[46][1981] FLR 325

[47][2010] VSC 441 [161].

[48]Trimboli (n 46) 335.

What was stated by Justice Holland in Trimboli seems, on the face of it, to conflict with other authority on the question of whether or not there is a requirement, for seizure of an item to be legal, that the seizing officer believe, on reasonable grounds, that the item falls within the description in the warrant of items authorised to be seized.

I heard submissions this morning from counsel on both sides on this apparent conflict. It remained the position of the prosecution that what is important is the objective nature of the item seized, and whether it fits within all three conditions of the warrant. Mr Robinson put the submission, however, that it would not be necessary for me to decide the point in order to decide whether the phone was lawfully seized. Ms Gerry, on the other hand, submitted that the law was that I would be required to judge whether the subjective decision making of the executing officer was objectively reasonable. That approach, if I understood her correctly, would require me to consider what was in the mind Detective Sergeant Prins at the time of the seizure of the phone.

2016 phone

The starting point of a consideration of the submissions in connection with this phone is the sworn evidence given in the proceeding. In its relevant respects, I have already summarised that evidence.

Although a determination of the truthfulness and accuracy of the evidence of Detective Sergeant Prins will not necessarily be determinative of the defence application for the exclusion of the evidence of the 2016 phone, it will place many of the submissions in context.

In cross examination, defence counsel accused this witness of fabricating evidence as to his state of mind, and challenged his evidence that he was not aware at the time of picking it up that the phone in the back seat of the vehicle belonged to the accused. In her submissions, Ms Gerry re-doubled her attack upon the conduct and credit of the witness. She invited me to reject his evidence in a number of respects and for a number of reasons. She went as far as to describe his evidence as deliberately dishonest and his conduct, as I have already mentioned, as ‘unlawful, not reasonable, and egregious’.

I have carefully considered all of the criticisms made of the conduct and evidence of Detective Sergeant Prins, which were front and centre of the defence submissions in pursuit of the exclusion of the 2016 phone evidence. Having done so, I am firmly of the view that the criticisms of this witness were entirely unfounded.

True it is that there were some differences between the evidence of Prins and Ford when it came to the events at the scene of the interception in 2016. Furthermore, there were some aspects of his notes which might have been more comprehensive than they were. In spite of these matters, however, I see no reason at all to doubt the truthfulness of the evidence of the witness, or the accuracy of the account he gave. Specifically, I accept that at the time of retrieving the accused’s phone from the vehicle, he was not aware whose phone it was. I also accept his evidence that when he seized[49] the three phones in the vehicle, he believed that all of them complied with the three conditions of the warrant.
[49]My use of this word does not connote a finding at this point that what occurred did amount to seizure of the phones at that time.

I also reject the assertion made on behalf of the accused that the witness behaved unreasonably or inappropriately in the execution of this warrant. In my opinion, there was no evidence which supported that contention.

Insofar as Ms Gerry relied upon the asserted unlawfulness of the arrest or detention of the accused in support of her submissions, I consider that the question of whether there was anything unlawful or inappropriate about the way in which the accused was treated has little or no bearing on the question of the legality of the seizure of his phone. In the circumstances, I see no need to decide whether or not what was done with the accused was, as asserted by Ms Gerry, unlawful.

Having said that, I should note for completeness, that in the circumstances in which the intercepting members of the Special Operations Group found themselves, I see no reason to find fault with their conduct in removing the three occupants from the motor vehicle in the manner in which they did, and in the case of the accused, binding his wrists with cable ties. Nor do I find fault with the decision to keep the accused at the scene for a period of time. It should not be forgotten that the other two men were arrested on suspicion of involvement in the planning of a terrorist attack in the Melbourne CBD. The attack, which was to involve the use of an explosive device and other weapons, was considered by the authorities to be imminent. In the hours leading up to the interception of the vehicle, the three men in the vehicle had been viewing an extremist video in the motor vehicle. Amongst the items included in Condition 1 of the warrant were firearms, edged weapons, and chemicals and other things related to the construction of explosive devices.

When it came to the time for the police to act and execute this warrant, very strong steps were required to promptly secure the vehicle to enable the search, and self-evidently, it was necessary in doing that to remove all three occupants from the car, detain them, and in the case of the accused, keep him detained until such time as it was considered safe for him to be released.

Having already indicated that I do not need to decide the lawfulness or otherwise of the way in which the accused was treated, I can only say that for my part, I see no problem with what was done.

Turning to the question of whether or not the seizure by Prins of the accused’s phone was unlawful, being not justified by the terms of the warrant, as submitted by Ms Gerry, my acceptance of the evidence of Prins is significant, but by no means critical. It means that, in respect of the 2016 phone, I reject the central contention of Ms Gerry that the actions of the police in relation to the phone were unlawful to such an egregious extent, involving unlawful arrest and denial or rights, that the evidence obtained from the phone should be excluded.

That does not mean, of course, that the seizure of the phone under the warrant was lawful. I turn to that issue now.

Ms Gerry submitted that the seizure of the 2016 phone was unlawful because it was not authorised by the section 3E warrant. It was submitted that neither Condition 2 nor Condition 3 of the warrant was satisfied by that phone.

In respect of Condition 2, Ms Gerry submitted that it was plain on the face of the warrant that what was being searched for were items relating to the six persons named in the warrant. I do not accept that submission. It flies in the face of the clear words contained in Condition 2 of the warrant. Once an item satisfied Condition 1, which the phone of the accused undeniably did, the question was whether it satisfied Condition 2, which it would do if it ‘related’ to any one or more[50] of the items or matters set out in the following 27 dot points. As I read those items, it is perfectly clear that this phone related to a number of those items. Amongst other things, there was data on this phone showing contact between that phone and the phones of the two men travelling in the vehicle with the accused. Also, there was material on the phone indicating the phone had been used to search news items on the fire at the Imam Ali Islamic Centre, a location noted specifically in Condition 2.
[50]My emphasis.

If it was the intention of the issuing magistrate that an item would not be seizable under the warrant unless it related specifically to one of the named people, then that could have been made clear in the terms of the warrant. That was not done.

Insofar as defence counsel urged upon me an interpretation of the word ‘relates’ that had it actually mean, ‘relates to those persons who are under investigation’, I reject that contention. So, too, do I reject the assertion that, when construing the word, I should have regard to the personal nature of the modern smart phone. In my view, there is no call at all to construe that word differently in connection with a smart phone than with any other item. Nor is there any reason why the word should be understood in any way contrary to its ordinary meaning in the English language. If something is in some way connected with some sort of physical item, it relates to it.

For the reasons I have stated, it is clear, when the phone and its contents are looked at objectively, that the 2016 phone satisfied Condition 2 of the warrant.

As my summary of her submissions reveals, counsel submitted in respect of Condition 2 that the test was whether Condition 2 was satisfied, not whether Prins reasonably believed that the phone satisfied the condition. Her submission was different in respect of Condition 3. She submitted that in considering whether the phone came within that condition, I need to focus on Prins’ state of mind, namely, whether or not he believed at the time of seizure that there were reasonable grounds for suspecting that the phone would afford evidence as to the commission of the named criminal offences. What was required was ‘an objective assessment of the subjective thinking of the officer’.

Assuming, without deciding, the correctness of that submission by counsel, and assuming that the seizure of this phone occurred when Prins removed it from the car, and not at some later time once the phone had been examined, were I to embark upon the process in the fashion urged upon me by counsel, I would conclude the phone did satisfy the third condition of the warrant. The circumstances surrounding the finding of the phone would dictate that outcome. Those circumstances include the fact that the accused had been found in a motor vehicle in the company of two suspected terrorists, and that extremist material had been played in the motor vehicle in the presence of the accused only a short time before.

Were I to act upon the submissions of the prosecution, the focus would be on the objective facts of the content of that phone, rather than on the state of mind of Prins. If that is the correct approach, when viewed objectively, there is no doubt that there would be reasonable grounds for suspecting that the phone would afford evidence as to the commission of a terrorist offence. The connection between the accused and the two arrested men, and the interest in the completed terrorist attack upon the Imam Ali Islamic Centre, both of which were demonstrated by the contents of the phone, would suffice to establish that.

However the task is approached, in my view it is clear that the phone did satisfy Condition 3 of the warrant.

Another submission made by Ms Gerry was that because of the particular nature of a smart phone, the police behaved improperly in downloading all of the contents, rather than in carrying out a more limited search. I reject that submission as well. No Australian authority was relied on which supported that contention, which is hardly surprising. It is perfectly obvious that before much evidence would be able to be obtained from a smart phone, it will be necessary to examine its contents. For what it is worth, I am perfectly confident that the magistrate who issued the 3LA warrant in this case, and included mobile phones as one of the items in the first condition, would have expected that were any such item to be seized under the warrant, the police would carefully examine its contents to see what was revealed. In my view, the police were perfectly entitled to examine the full contents of the 2016 phone.

On the face of the authorities, there may be a conflict as to what is required before an item is lawfully seizable under a warrant. Some cases indicate that there is a requirement that the seizing officer have a reasonable belief that seized items fall within the description of the warrant. Others suggest the test is whether or not the item in question, looked at objectively, meets the conditions.

In this case, I have concluded that the 2016 phone satisfied all three conditions of the section 3LA warrant pursuant to which it was seized, no matter whether the matter is looked at in terms of the subjective belief of Prins, or the objective nature of the phone. On any view, the 2016 phone would comply with the requirements of a lawful seizure.

In light of the fact that the 2016 phone of the accused satisfied all three conditions of the warrant, and in circumstances, which I have already found, that there was nothing unreasonable or improper about the way the warrant was executed by Prins, or the way in which the phone was processed by the police, the seizure of the 2016 phone was lawful.

For completeness, although, of course, I have not had any reason to go on and consider section 138 of the Evidence Act 2008 in connection with the 2016 phone, I note that had I been required to do so, as a result of my finding something illegal or improper about the way in which the phone itself, or its contents, had come into the hands of the police, I would still have admitted the evidence. It is obvious to me that the weighing or balancing process set out in the section would have come down strongly in favour of the admission of the evidence.

2017 phone

As with the 2016 phone, it is necessary for me to start by stating my conclusions in respect of the sworn evidence given in connection with this phone.

In the case of the witness Davies, the attack upon his conduct and his evidence was not as trenchant as had been the case with Prins. Notwithstanding that, however, Ms Gerry did describe the witness as being ‘slippery’ in respect of the chronology he gave as to the giving of the caution and rights. She also, as I earlier indicated, went as far as to characterise the behaviour of Davies in failing to explain the rights to the accused and in relying on a lapsed section 3LA order as being ‘egregious, shocking, and outstandingly bad’. Having considered the evidence of Davies, in the context of the other evidence given, and the full circumstances of this case, I believe the strong attack upon him was unfounded.

To be specific, I accept the evidence of Davies that he did caution the accused and explain his rights to him, including his right to speak to a legal representative, before he was asked to provide the PIN. Counsel urged me to prefer the evidence of Ford on the issue of when the rights were explained. I do not consider, however, that the evidence of Ford makes the evidence of Davies on the topic unworthy of belief. I do not believe that the fact that Ford did not hear or recall the caution and explanation of rights take place before the PIN was provided means that it did not occur. The handling of the 3LA order and how that would be put into effect was not the domain of Ford. This was Davies task to carry out. He stated on oath that he did explain the rights at that time. In the circumstances as I will later turn to, that was a very careful and, indeed, unnecessary thing to do, but I am satisfied that he did it. No evidence was given by the accused in the hearing of this matter. If it was the case that the rights were not provided at that time, he would have been in a position to say so, and he did not. As for Ford, there are a number of explanations for why she may not have observed, or recalled, the rights being explained at that time. She might have had her attention diverted to another task, or, indeed, because the evidence did not really delve into the issue of where she was at every moment, she may not even have been present in the interview room.

Turning to the matters relied upon by Ms Gerry to establish unlawful conduct by the police in connection with their obtaining of the PIN, I deal first with the assertion that the police were required, by section 23G of the Act, to provide the accused with his rights prior to asking him to provide the PIN.

I do not accept the submissions made in this regard by Ms Gerry. I believe there was no such obligation on the police. That duty only arises when the police intend to question a person. In light of the definition of that term as set out in section 23B(6) of the Act, what was happening at this point did not amount to questioning. To ask the accused to provide the PIN number of his phone was not to question him or carry out an investigation into his involvement in an offence. It was no more than a request, supported by an order from a magistrate issued pursuant to law, for the information which would enable the police to obtain access to his phone.

Ms Gerry submitted that the request for the PIN was ‘inextricably linked’ with the investigation of whether the accused was involved in a crime. Even if that were so, that would not mean that a mere request for the PIN could amount to questioning for the purposes of section 23G. Nor would the fact that the giving over of the PIN may itself have been incriminating, mean that that request could properly be viewed as questioning.

In my view, it is very clear that what was being done at that preliminary stage by Davies did not amount to questioning as that term is defined in the Act. Therefore, there was no duty on him to explain the accused’s rights to him. As a result, the first plank of suggested illegal behaviour by the police relied on in support of the exclusion of the evidence of the 2017 phone, fails.

The other matter relied on is not so simple. It was submitted by Ms Gerry that the section 3LA order had lapsed due to the operation of section 3LA(3).

In connection with this matter, Ms Gerry submitted that by the time the request was made of the accused for his PIN, reliant on the section 3LA order, the phone had already been seized, and therefore, as a result of sub-section (3), the order did not have effect. Therefore, when Davies provided the accused with a defunct order, and relied on that to extract the PIN, he was acting unlawfully and unfairly, and the material derived from the phone could be said to have been improperly or illegally obtained.

On the other hand, Mr Robinson submitted that the only sensible way section 3LA(3) could be construed was that the seizure referred to in the provision meant something more than the mere taking of the phone. It meant seizure under the Act, within the terms of section 3F(c) and that would not occur until such time as there had been satisfaction that the item met all the requisite conditions of the warrant. That did not occur until the police gained access to the phone, which did not take place until the PIN had been provided by the accused. Therefore, so the submission went, at the time of the request, and the reliance on the section 3LA order, the order was still in effect.

The term ‘seizure’ is not defined in the Act, as was pointed out by the Full Court of the Federal Court in the case of Hart v Commissioner, Australian Federal Police.[51] The Court noted that the ordinary meaning of the word is ‘confiscation or forcible taking possession (of land or goods)’, as indicated in the Shorter Oxford English Dictionary. The Court went on to state:

While removal of things from the warrant premises will usually constitute and complete their seizure and the execution of the warrant, this is not the case if they are removed for examination under s 3K without the executing officer having formed any belief as to their contents. Seizure, in that case, does not occur until after the examination and a decision by the relevant officer to effect their seizure. To be lawful, that decision must be based upon the requisite state of satisfaction that the things seized are evidential material of the kind specified in the warrant.[52]

[51][2002] FCAFC 392 (French, Sackville and Nicholson JJ).

[52]Ibid [83].

As I pointed out earlier, Mr Robinson submitted that section 3LA(3) represented ‘a peculiar piece of drafting’. No authority was provided to me as to its true meaning and purpose. In the circumstances, I have found it difficult to decide between the two conflicting positions taken by the prosecution and the defence on this matter. I do not consider it necessary, however, for this particular question to be decided. In my view, the way forward is clear in connection with the evidence of the 2017 phone, whatever view I was to reach on the question of the status of the section 3LA order relied on by the police.

Assuming, without deciding, that the submissions of Ms Gerry are correct, and that the order had lapsed, when I come to consider the position under section 138 of the Evidence Act 2008, I am firmly of the view that the evidence of the 2017 phone should be admitted. I will turn to a consideration of that provision now.

Section 138 of the Evidence Act 2008; 2017 phone

In my view, the desirability of admitting the evidence of the 2017 phone outweighs the undesirability of admitting the evidence in circumstances where the PIN number, and therefore, access to the phone and the evidence contained within it, were obtained with the aid of a section 3LA order which had, or may have, lapsed.

A contemplation of the matters in the non-exhaustive list of considerations contained in section 138(3)(h) clearly dictates the conclusion stated above.

A convenient starting point is a consideration of the gravity of the contravention of the law I have assumed for the purposes of this process, and the question of whether such contravention was deliberate or reckless.

It is patently clear that Davies believed that the section 3LA order which he handed to the accused was a valid order. Had he had any concerns about that, he no doubt could readily have sought another order before making the request of the accused. If, indeed, by operation of law, this order had lapsed by that time, it was not something of which he was aware. Mr Robinson submitted, as I set out before, that everything about this aspect of the case ‘reflects a bona fide belief that what he was doing was in accordance with law’. I accept that submission. Any impropriety or contravention of the law by Davies would have been entirely inadvertent and of a very low level of seriousness.

As against that, the probative value of the evidence obtained from the phone was high, and the evidence is important in the prosecution case. Furthermore, the offence the subject of this trial is of a completed terrorist act, to which a maximum penalty of life imprisonment applies. It is a very serious offence.

Taking into account all of the matters I am required to consider by section 138(3) of the Evidence Act 2008, I believe that the balancing exercise required of me by section 138(1) would result very comfortably in a conclusion that the evidence of the 2017 phone should be admitted in the trial.

Conclusion

For the reasons I have endeavoured to set out in this ruling, the evidence of both the 2016 phone and the 2017 phone will be admitted, subject to any later ruling touching on individual items of the evidence.

[2019] VSC 72

18 February 2019