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 N and arrest them in relation to allegations of sexual abuse.
On the morning of 25 June 2021 Ms T was arrested by Detective Kennedy at her home at Nuriootpa. Mr N was at his place of work at this time. Detectives Bussenschutt and Kennedy arrived at the accused’s workplace and drove up a long driveway. As they travelled towards the workplace, they noticed a vehicle being driven by the accused in the opposite direction. The Detectives followed the accused’s vehicle to his home address. The exchanges with Mr N which followed were recorded on video camera.[2]
[2] VDP 2.
Mr N was placed under arrest and Detective Bussenschutt explained that their investigation concerned his step-daughter KB and related to serious sexual allegations.
Detective Bussenschutt read Mr N his arrest rights, which included advising him of his right to contact a lawyer and his right not to answer questions. The following conversation occurred after Mr N was advised of his right to have a solicitor present:
Q: Do you want anyone present at all?
A: Um, I haven’t got a solicitor at the moment but.
Q: We can organise you to get some.
A: Yep.
Q: Legal advice over the phone, you happy with that?
A: Yep.[3]
[3] VDP 2.
After advising him of his right to silence, Detective Bussenschutt told Mr N “we’re not going to have any discussion about any of these allegations, I’ll get you some legal advice first”. The video camera was then switched off. This conversation occurred in the back of the police vehicle. Detective Kennedy drove the vehicle from Nuriootpa to Elizabeth Police Station with Detective Bussenschutt seated with the accused in the rear attending to various administrative duties associated with the arrest.
At 12.36 pm, while still en route to Elizabeth Police Station, Detective Bussenschutt made a call to the Legal Services Commission. Detective Bussenschutt spoke to a solicitor who asked whether it was possible for Mr N to be provided with a private place to speak. As they were travelling in the police vehicle nowhere private was immediately available. Detective Bussenschutt decided not to interview Mr N because to do so would be unfair, given it had not been possible for him to obtain legal advice.
The decision not to interview was made by the Detective and not by Mr N exercising his right to silence. At 1 pm the recording equipment was re-activated, and a further conversation was recorded. Mr N was given the following advice:
We have just tried to call legal services commission on the 1300 number um but we were unable to secure a private area so on the basis of that, um [Mr N], we won’t interview you, until you get the chance to get some legal advice. [4]
[4] VDP 2.
Either just prior to, or just after that conversation, Detective Bussenschutt formally seized Mr N’s mobile telephone. The telephone had been removed from Mr N’s physical possession during the safety search when he was first arrested. Detective Bussenschutt obtained the mobile telephone from either the front seat of the car or the passenger seat alongside him and told Mr N that he was seizing it. Detective Bussenschutt then asked Mr N for the passcode. Mr N told the Detective his passcode and volunteered that it was his “son’s birthday”. Detective Bussenschutt could not recall the exact words he used to ask for the passcode although he agreed it was provided in response to him asking for it. He agreed the passcode was not simply volunteered to him by Mr N.
Detective Bussenschutt initially said the phone was seized and the passcode obtained prior to Mr N being advised that he would not be interviewed. In cross examination he accepted he was not 100 percent certain about the timing, and it could be that the phone was seized and the passcode obtained after Mr N was told he was not going to be interviewed.
Mr N’s evidence was that the phone was seized and the passcode given after he was advised that there would be no interview (after the second recorded conversation on VDP2). Detective Bussenschutt’s notes, which were tendered as VDP 3, do not assist on that matter. I have proceeded on the basis that the phone was seized, and passcode provided after Mr N was advised that there would be no interview. That was Mr N’s clear evidence. Detective Bussenschutt was unable to be categorical about the sequence and his notes provided no assistance.
Detective Bussenschutt was asked why the conversation about the passcode was not recorded. Detective Bussenschutt said he did not consider he was obliged to do so as he was not conducting an interview.[5] He did not consider that his obligations pursuant to section 74D of the Summary Offences Act 1953 (SA) applied to recording that question and answer.
[5] TS 501.
Detective Bussenschutt said the following regarding his powers in respect to passcodes:
A: The Summary Offences Act allows us to request a passcode, if the person does not comply we are able to then seek a Magistrates order to get that passcode.
Q: Are you referring to what’s called part 16A of the Summary Offences Act that contained, among other sections…74BQ and 74BR ?
A: Yes
Q: Is it your understanding that between those two sections police officers can obtain an order from a magistrate to force someone to provide certain information or digital or electronic data.
A: Yes [6]
[6] TS 504.
He went on to explain that he did not consider that his recording obligations applied to asking for a passcode. He said he considered the request “procedural” and likened it to questions that he asked as an investigator about child related work for the purposes of notification obligations[7]. He later compared asking about a passcode to questions about taking a DNA sample, which are not subject to section 74D. He considered that the Summary Offences Act empowered him to ask for the passcode to the phone.
[7] TS 504.
Detective Bussenschutt was asked what he considered his obligation to be when a person indicated that they wanted legal advice after receiving their rights on arrest. He told the Court that he considered himself obliged to make all reasonable endeavours to get the arrested person legal advice if that was their request. He said it was his practice not to interview an arrested person in circumstances where it was not possible for legal advice to be obtained.[8]
[8] TS 504.
Mr N gave evidence that at the time of his arrest he wished to speak to a lawyer to find out what his rights were. He said that when Detective Bussenschutt asked him for the passcode for his phone he “automatically” thought that he had to give it to him[9]. He explained he believed that because Detective Bussenschutt was a police officer, asking for the passcode. In cross examination Mr N expanded, saying:
[9] TS 521.
Q: So, what is it about being a police officer?
A: Well, you obviously trust them, don’t you.
Q: What do you mean by that?
A: So they’re there to support you, I suppose, like in that sort of way and I just automatically assumed that, yes, I have to hand that over because he asked for it.
Q: But you understood some 20 minutes earlier that you didn’t have to answer any of his questions?
A: Yes, that’s right
……
Q: But the fact remains that at the time you gave him your pin number you still knew you had a right to silence.
A: No, it’s the first time I’ve been arrested.
Q: But what I’m saying is you still knew from the conversation in the driveway that you didn’t have to answer questions
A: Yes, that’s right.[10]
[10] TS 524.
Mr N confirmed that there were no threats or inducements associated with the request to provide his passcode. He agreed that Detective Bussenschutt asked politely, and he did not think there would be any consequence for him if he refused to provide the passcode.
Later, responding to my questions, Mr N accepted that he had been told he did not have to answer questions, and agreed that the request for the passcode was a question. He said, “it just didn’t click to me not to say anything”.[11]
[11] TS 527.
Mr N’s account of his specific state of mind was confused and inconsistent. He accepted that he understood that he was under no obligation to answer questions. He did not say that he was confused about those rights by the circumstances or that he had forgotten his rights. The high point of the evidence was that he thought he would not be interviewed, but he accepted and understood his right included not to answer questions. In my view, the truth of the matter is as he put it, “it just did not click to him not to say anything”.
Voluntariness
Counsel for Mr N submitted that the prosecution had not proved that the provision of the passcode was voluntary in the sense of being an exercise of free will. He argued that the accused had misapprehended the powers of the police and his decision to speak was attenuated by a substantial misunderstanding. He argued that such a misunderstanding rendered the statement involuntary.
Counsel for Mr N did not point to any threat, or inducement, continued persistence or harassment, or any impairment of cognition that would fit into the recognised categories of involuntariness. The misunderstanding relied upon was that Mr N believed he was obliged to answer the question and provide the passcode.
In R v Azar[12] the Court observed that voluntariness involves an enquiry about the accused’s will, not their state of knowledge, including their knowledge of their legal rights. Their knowledge might be relevant as an evidentiary fact, but the question of the overbearing of their will is a different question. An accused person who knows nothing of their right to silence can nonetheless make a voluntary statement.
[12] (1991) 56 A Crim R 414 at 419
The fundamental question is whether the accused’s statement resulted from an exercise of free will, or his will was overborne. The external conduct which is said to bring about the confession is relevant, but the test is ultimately a subjective assessment focussed on the will of the accused, taking into account any of the accused’s relevant subjective characteristics.
It is relevant to note that at the time the question about the passcode was asked the accused had been advised about his right to silence. Detective Bussenschutt had complied with his duties pursuant to section 79A of the Summary Offences Act. At no time did the accused express an intent or a wish to exercise that right. The issue of the accused’s choice whether to answer questions did not arise because Detective Bussenschutt determined not to conduct an interview.
In the course of his evidence the accused accepted that he understood that he was under no obligation to answer questions. His evidence about why he did provide the passcode notwithstanding understanding his rights was, at its highest, that he automatically assumed he had to give it to the police because they asked for it, and it “did not click” for him not to say anything.
The question of the voluntariness of the statement needs to be approached against the background that the accused had been clearly advised of his right to silence. The giving of a caution usually operates to deny any suggestion of involuntariness. The accused did not give any indication either way whether he wished to exercise his right to silence. Police did all they could to facilitate him obtaining legal advice. There was no inducement or threat or any other conduct that could have overborne his will in the relevant sense.
The accused’s evidence does not support a conclusion that his will was overborne. Taking into account all the circumstances, including the accused’s admissions in evidence that he knew and understood his rights, I am satisfied that the answer given by the accused when asked for his passcode was voluntary. I am satisfied that the accused’s will was not overborne, and his answers were in the exercise of a free choice. I accept that he would, in hindsight, have made a different choice now, but that is not the test.
Public Policy Discretion
The accused submitted that the text messages ought to be excluded on the basis that the conduct of Detective Bussenschutt in asking for the passcode was improper and breached the accused’s rights on arrest. He argued that the asking of the question about the passcode at all when the accused had asked for legal advice, and that could not be obtained, was improper.
Counsel for Mr N accepted that Detective Bussenschutt had done all that was required to secure legal advice for Mr N. I consider that his decision not to interview the accused, after establishing that it was not possible to obtain legal advice, was fair and reflected a concern on the Detective’s part to ensure that he dealt with the accused in a fair manner.
Counsel for Mr N argued however that it was improper for the Detective to continue to ask any questions of the accused after it was clear that it was not possible to secure him legal advice that he had asked for. He argued that where legal advice cannot be obtained after a request for advice is made, an interview simply may not proceed, and a request for a lawyer contains the unspoken inclusion “before I answer any questions”.
I accept that Detective Bussenschutt complied with his obligation to facilitate the accused’s access to legal advice. He complied with his obligation to inform the accused of his right to silence.
Detective Bussenschutt fairly determined not to interview the accused because that advice could not be obtained.
The question about the passcode was asked because the detective did not regard it as part of the interview, but thought it was procedural. I infer that he meant it was a question he was required to ask as a gateway to obtaining an order for the passcode if it was not provided. He told the Court that asking for the passcode is now standard procedure in matters where child sex offences are being investigated. He said, “the Summary Offences Act allows us to request a passcode, if the person doesn’t comply we are able to seek a Magistrate’s order to get that passcode.”[13]
[13] TS 504.
The Summary Offences Act does not provide any specific power to police to request a passcode. Part 16A provides a scheme for application to be made to a Magistrate for an order that an accused provide a passcode. The power is restricted to investigations into a child exploitation offence. Section 74BQ of the Summary Offences Act provides that an order is not required where the passcode is provided “at the request of a police officer or otherwise”. Where the passcode is so provided, the information is to be treated as though it were obtained as a result of an order pursuant to Part 16A.
There is nothing preventing a police officer from asking for the passcode to a mobile phone. A request for the passcode is however subject to the constraints of the privilege against self-incrimination and the duty to advise a person of that right at a relevant point in the investigation.[14]
[14] Middlin-Hannah v The Queen [2020] SASCFC 112.
Detective Bussenschutt was in error in his view that the question fell outside his obligation to record an interview[15] and was wrong in describing the question as akin to procedural questions which relate to the taking of DNA samples and other compulsory matters.
[15] An argument for exclusion on the basis that the question and answer about the passcode were not recorded as required by section 74D of the Summary Offences Act. The argument was not pursued as it was not the question and answer that was sought to be excluded, but evidence obtained as a result of the passcode information.
Two questions therefore arise:
1. Was Detective Bussenschutt obliged not to ask for the passcode after it was clear it was not possible to obtain legal advice?
2. Was Detective Bussenschutt obliged to remind the accused specifically about his right to silence in circumstances where I accept that he had advised the accused that he would not be interviewed.
I consider that there was no obligation on Detective Bussenschutt to abandon questioning altogether after it was clear that legal advice could not be obtained. A request for legal advice should not be interpreted as necessarily indicating a wish to exercise the right to remain silent. The accused at no time indicated that he wished to exercise his right to remain silent.
I do consider however that Detective Bussenschutt, prior to asking for the passcode, should have asked the accused whether he wished to exercise his right to remain silent. The Detective perceived that it would be unfair to continue to ask questions without legal advice being obtained and determined not to interview Mr N. His conduct in that regard cannot be criticised. However, his view about the nature of the passcode enquiry led him to ask a question which the accused was not obliged to answer without taking the time to identify whether the accused in fact wished to exercise his right to silence. That was especially important in light of the fact that he was unable to access legal advice, and the potential for confusion given that the accused had been told that he would not be interviewed. The Detective was obliged to advise the accused of his various rights, but also to provide a proper opportunity to exercise those rights, if requested. At no time was the accused asked whether he wished to exercise his right to silence. The circumstances overall created by the police gave rise to a level of confusion which in my view fell short of a misunderstanding about his rights. I am satisfied that the circumstances of the question being asked caught Mr N off guard and in the circumstances he ought to have been specifically asked whether he wished to exercise his right to silence.

I do consider that Detective Bussenschutt’s misunderstanding about the nature of the passcode enquiry led to the accused not being given a specific opportunity to exercise his right to silence. In R v Andrews, Debelle J observed that police should desist from questioning a suspect who has indicated he wishes only to speak in the presence of a solicitor or after legal advice has been obtained.[16] In this matter, the accused did not indicate at any point that he wished to exercise his right to silence. He was not given the opportunity to do so because of Detective Bussenschutt’s decision not to formally interview him.
[16] [2005] SASC 15.
I conclude that Detective Bussenschutt’s misunderstanding about the nature of his enquiry about the passcode led him to ask the question in circumstances where the accused should have been given a specific opportunity to exercise his right to silence. It was unfair of the detective not to give the accused the opportunity specifically to exercise that right.
I find therefore that the public policy discretion is enlivened. I have considered the public interest in accused persons having a fair trial against the public interest in the efficient police investigation of offences.
Notwithstanding the observations that I have made, I would not exercise my discretion to exclude the evidence. In my view Detective Bussenschutt acted in all other ways correctly and with concern for the accused’s legal rights. His conduct in asking the question stemmed not from a disregard of the accused’s rights or an intent to gain some forensic advantage by sharp practice, but from a genuine misunderstanding about the powers available to him.
It is also important to my conclusion that the evidence could have been obtained even if it had not been provided in response to Detective Bussenschutt’s question. Section 74BR of the Summary Offences Act empowers a Magistrate to require a person to provide a passcode in identified circumstances. I am satisfied that such an order could have been obtained on the information available to the investigators at that time. This is not a situation therefore where the information could not have been obtained but for the conduct of the officer concerned.
It is also relevant that the evidence obtained as a result of the provision of the passcode is probative and reliable evidence of a serious crime involving the sexual exploitation of a child.
I decline to exercise the public policy discretion to exclude the evidence located as a result of the passcode to the mobile phone being obtained in these circumstances.
Unfairness
In the alternative to the voluntariness and public policy argument, counsel submitted that text messages should be excluded under the unfairness discretion, for the same reasons as advanced in respect to voluntariness. The unfairness discretion exists to protect the accused from an unfair trial, not to protect him from unfairness generally.
The accused again relied on the fact that he had misunderstood his obligation to provide his passcode and argued that it was unfair for the prosecution to profit from such a misunderstanding. It is not at all clear on the evidence that the accused laboured under such a misapprehension. At different times Mr N said different things about his understanding of his rights.
I am satisfied that the accused was caught off guard and answered the question without considering and exercising what he knew to be his rights. Had he been given the opportunity to exercise his right to silence specifically, he may not have provided the passcode at all.
However, it is not the confessional evidence that is sought to be led, but the evidence of text messages obtained through use of the passcode to access the mobile telephone. In Middlin-Hannah v The Queen President Livesey observed that where there is some issue about the admission of confessional evidence, the exclusion does not ordinarily extend to the exclusion of real evidence obtained as a result.[17] As I have observed in respect to the public policy discretion, I consider that if the accused had exercised his right to silence, and order could have been obtained to compel him to provide the passcode. I do not consider that the text messages could not have been discovered without the accused providing the passcode at the time of his arrest. The evidence is highly probative of the issues to be determined at the trial.
[17] [2020] SASCFC 112 at [152].
I decline to exercise my discretion to exclude the evidence of text messages and photographs obtained from Mr N’s mobile telephone.[18]
[18] Exhibits P6 and P7.