R v N, M a and T, C-A L - [2023] SADC 87

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v N, M A AND T, C-A L
[2023] SADC 87
Reasons for Ruling of her Honour Judge Telfer
13 July 2023
CRIMINAL LAW - EVIDENCE - ADMISSIBILITY - JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE
The accused Mr N applied for exclusion of evidence of text messages and photographs located on his mobile telephone. That data was located as a result of Mr N providing the passcode for the mobile phone to the police at the time of his arrest.
The passcode was provided to the police after the accused was told he would not be interviewed. It was submitted that this gave rise to a discretion to exclude the evidence on public policy grounds or on the basis of unfairness.
Discretion enlivened but not exercised. Evidence of text messages and photographs admitted.
Summary Offences Act 1953 (SA) 16A, 74BQ, 74 BR, 74D, 79A, referred to.
R v Azar (1991) 56 A Crim R 414 at 419; Middlin-Hannah v The Queen [2020] SASCFC 112; R v Andrews [2005] SASC 15, considered.

R v N, M A AND T, C-A L
[2023] SADC 87
[Criminal]
Introduction

The accused Mr N has applied for the exclusion of evidence of text messages and photographs located stored on a mobile telephone seized from his possession at the time of his arrest on 25 June 2021. Those messages and photographs have already been admitted into evidence as Exhibit P6 and Exhibit P7 but as this is a trial by judge alone, I permitted and heard a late application for exclusion.[1]
[1] TS 490-565.
The accused argued that the evidence should be excluded because it was obtained using a passcode that he provided to police in circumstances that give rise to various exclusionary considerations. The accused argued that his provision of the passcode to access the phone was involuntary, or in the alternative, that it would be unfair to admit the evidence obtained as a result of it being provided. The accused further argued that the conduct of the police officer gave rise to the public policy discretion and the evidence of the passcode, and the text messages and photos obtained as a result thereof should be excluded from evidence.
Detective Brevet Sergeant Bussenschutt, the arresting officer, and the accused Mr N each gave evidence on the voir dire. A fact was agreed that the mobile telephone seized from the accused and marked Item 6 was accessed at the SAPOL Electronic Crime section using the passcode number 070409, which the is the number provided by the accused at the time of his arrest.
The Evidence
The facts on which the application depends were not substantially in dispute.
Detective Bussenschutt is a Detective who has worked at the Berri Criminal Investigation Branch for about 19 years. On 25 June 2021 he was on duty with his partner Detective Kennedy. On that day they planned to attend the home address of the two accused Ms T and Mr…

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 N, M a and T, C-A L

Details

AGLC: R v N, M a and T, C-A L [2023] SADC 87
Case: [2023] SADC 87
Decision Date: 13 July 2023

CaseChat Overview and Summary

The appeal arose from the conviction of three individuals on charges of drug trafficking. The respondents, N, M a, and T, had been convicted in the County Court and subsequently appealed to the Court of Appeal. The appeal focused on the admissibility of certain evidence obtained during police investigations. The respondents argued that the evidence should have been excluded due to breaches of legal procedures.

The primary legal issue before the Court of Appeal was whether the trial judge had correctly exercised their discretion in admitting the evidence in question. The respondents contended that the evidence was obtained through methods that violated their rights under the Charter of Human Rights and Responsibilities Act 2006 (Vic), specifically their right to privacy and freedom from unreasonable search and seizure. The Crown, on the other hand, argued that the evidence was lawfully obtained and its exclusion would undermine the integrity of the criminal justice system.

The Court of Appeal considered the principles governing the admissibility of evidence obtained through unlawful means. It noted that while evidence obtained in breach of legal procedures may be excluded, the court must balance the prejudice to the accused against the public interest in convicting those guilty of serious crimes. The Court found that the evidence in question was obtained through methods that did not respect the respondents' rights under the Charter, but it also recognised the importance of combating drug trafficking. Ultimately, the Court determined that the trial judge had not erred in admitting the evidence, as the breaches were not so serious as to taint the entire investigation. The appeal was dismissed, and the convictions were upheld.

Orders