R v P, Dr - [2022] SADC 63

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v P, DR
Criminal Trial by Judge Alone
[2022] SADC 63
Ruling of his Honour Judge Stretton
24 March 2022
CRIMINAL LAW - EVIDENCE - JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE - EVIDENCE UNFAIR TO ADMIT OR IMPROPERLY OBTAINED - PARTICULAR CASES
In the course of investigating child exploitation allegations against the accused’s partner, police located material suggesting the partner may have offended against the accused’s child. Police attended the accused’s house and spoke to her about her child, asked whether her partner had dealt improperly with her child, and asked how a naked photograph of the accused’s child came to be on her partner’s phone. Police did not warn the accused until she told police that she had supplied the photo to her partner. She was then warned. In the final analysis, police were in a solely investigatory phase until the accused disclosed that she had supplied the naked photo to her partner, and so up until that time were not obliged to warn the accused of her right not to answer questions. Upon the disclosure, police suspected that the accused may have committed an offence and were obliged to deliver the warning, which they did. Upon further questioning they formed a belief that she had committed an offence and delivered her rights as required pursuant to the Summary Offences Act. Police continued to question the accused after she indicated she wished to make a phone call and have a lawyer present.
Held: There was no unfairness until police continued to question the accused after she indicated she wished to make a phone call and have a lawyer present. At that point they should have paused the interview and afforded those rights. The appropriate exercise of the discretion in this case is to exclude the remainder of the interview.
Summary Offences Act 1953 (SA) s 79A (1), (3), referred to.
R v Dolan (1992) 58 SASR 501, applied.
Van Der Meer v R (1998) 62 ALJR 656, discussed.
R v Ireland (1970) 126 CLR 321; Bunning v Cross (1978) 141 CLR 54; R v Nguyen (2013) 117 SASR 432; Ollard v R (1992) 176 CLR 171; R v Golja [2017] SASCFC 61; Matthews v R [2020] SASCFC 1, considered.

R v P, DR
[2022] SADC 63

The accused is charged with unlawful sexual intercourse with a person under 14 by allegedly aiding, abetting, counselling, or procuring a co-accused to have sexual intercourse with her daughter, aggravated communicating to procure that child for sexual activity, and 2 counts of making a record of a child engaged in a sexual act by way of taking photographs of the child, aggravated by knowing she was under 14 at the time.
The accused has pled not guilty and elected for trial by judge alone.
All offending relates to the accused’s biological daughter, in the context of her relationship with the co-accused G.
Voir Dire
By Rule 49 notice, the accused has sought the exclusion of a number of items of evidence sought to be lead as part of the prosecution case. Many of the issues have been resolved by agreement between the parties, however two remain:
1.That the interview conducted with the defendant on 28 November 2019 be excluded on the basis that the accused should have been advised of the arrest of her co-accused and the nature and seriousness of the matters the police were investigating before any interview commenced and that the defendant should have been cautioned from the outset.
2.In the alternative, that all passages of the record of interview after the accused told police that she wished to exercise her rights under s 79A(1)(b)(i) of the Summary Offences Act (‘The Act’) both to have a friend present and a solicitor present during the course of the interview, and after she told police she wished to make a telephone call per s 79A(1)(a) of the Act be excluded.
Grounds of the Application
Police investigating the co-accused, who I will refer to as G, attended the accused’s house and questioned her about him, and about the accused’s daughter. The accused had been in a relationship with G, and police had located naked photographs of the accused’s daughter on his phone.
The defence submits that when police attended, they gave no indication that they were investigating any offence with respect to the accused, and that it was unfair to only inform her that they were investigating G and his conduct concerning the accused’s daughter, when in reality they had information that could suggest she was a suspect.
The defence submits that it was unfair that it was not until after the interview with the accused had commenced that they told her that part of the investigation related to her daughter and photographs thought to be of her daughter naked in a bath.
The defence submits that given that two officers[1] gave evidence that one of the reasons they attended at the accused’s house was to ascertain how it came to be that the co-accused had naked photographs of her daughter on his mobile phone, in all the circumstances, police should have as a matter of fairness advised the accused of those facts at the outset of the interview.
[1] Detective O’Callaghan and Detective Patterson.
The defence submit that prior to attending the accused’s house police were aware of the following matters:
1.The co-accused, G, was in a relationship with the accused or had been in a relationship with her.
2.The accused was the mother of a daughter named MP.
3.The co-accused would visit the accused’s address.
4.The accused lived at (a given address).
5.The co-accused, G’s telephone contained naked images of the accused’s daughter, MP.
6.Wickr communications suggested that the co-accused, G, had acted in a sexual manner towards the accused’s five year old daughter.
The defence submit that the accused was known either by name or by reference to her relationship with the co-accused, or by her address by one or more of the four officers who attended the briefing conducted prior to the police attendance at the accused’s property on that day. Further, that police confirmed that during the pre-attendance briefing details were provided concerning the accused and her home address ‘as it was anticipated it may be necessary to attend that address as a result of their investigations into the co-accused, G’.
Whilst the defence acknowledges that Detective Patterson’s position was that police attended the accused’s address to complete the investigation into G and in doing so to speak with the accused and her daughter to identify how a naked photograph of her daughter came to be on the co-accused G’s phone, they argue that the overwhelming inference is that police were also attending to locate the actual scene where the photograph had been taken, with Detective Patterson allowing for the possibility that the photograph had been taken at the accused’s home address and that the photograph of the accused’s daughter had been sent to the co-accused G by another person.
The defence submits that when attending the accused’s house, police in reality intended to speak with her and inspect her mobile phone and any electronic devices she had, as at least six officers attended, three of whom were digital evidence officers.
On this basis, the defence submits that the ultimate inference should be that by the time police attended at the accused’s house, their enquiries with her had gone beyond the investigatory stage and had reached an accusatory stage; which required police to caution the accused before commencing any interview.
The defence submits in the alternative that should the court not exclude the evidence of the interview in its totality on the basis of the above matters, it should nonetheless exclude that portion of the interview that occurred after the accused told police she wished to exercise her rights under the Summary Offences Act to have a friend present, have a solicitor present and make a telephone call.
Evidence on the Voir Dire
The statements of five police officers were tendered on the voir dire and several were called to give oral evidence.
Detective Brevet Sergeant Coombes was the investigating officer and conducted the formal record of interview.
Detective Coombes gave evidence by way of statement that at the relevant time she was attached to a police task force investigating child exploitation matters. On 25 November 2019 she became aware of child exploitation communications between the co-accused G and an undercover police officer. Accordingly on 28 November 2019 officers conducted a briefing and then attended G’s address. G was arrested. During that process G said that he wanted his girlfriend, the accused, notified of his arrest.
Detective Coombes said she saw a photograph on G’s mobile phone of a young female child aged about five lying naked in a bath and suspected this was G’s girlfriend, the accused’s child, and that that was the same child referred to in the child exploitation discussions that G had earlier had with the undercover police officer.
Detective Coombes did not attend the accused’s address or interview her.
Detective Brevet Sergeant O’Callaghan gave evidence by way of statement. His role included acting online in a covert capacity. In the course of so acting, he had communications with G whereby child exploitation materials came to the attention of investigating police. He attended the home of G on 28 November 2019 and was present for the consequent arrest of G. He was present during the location of naked images of the accused’s daughter on G’s phone.
Together with Detective Patterson he ultimately attended the accused’s house, spoke with the accused and observed child exploitation material on the accused’s phone.
Detective Sergeant Patterson gave evidence by way of statement that he attended the briefing conducted by Detective Coombes in relation to the allegation that G was in possession of and had disseminated child exploitation material.
Detective Patterson said that together with several officers, he arrived at G’s address, G was then arrested, and his premises were searched. As a result of the search, he observed a picture on G’s mobile phone of a naked child in a bath. Detective O’Callaghan advised him that the picture was of the accused’s daughter, MP.
Detective Patterson said that at about 2.10pm, police travelled to the accused’s house at (a given address) ‘to speak to the mother of MP as a result of locating the image of MP naked in the bath and to ascertain how G had that image on his phone’.
25On attending the accused’s property, Detective Patterson introduced police to her, activated a handheld video recorder and:
‘had a conversation with her, relative to her boyfriend G and the image of her daughter, MP being located on his phone. During that conversation, the accused made admissions to taking the naked photograph of her daughter in the bath and sending that image to G, knowing that he had a sexual interest in children. As a result of that conversation, I arrested (the accused) for disseminating child exploitation material, namely the naked image of MP’.
Detective Brevet Sergeant Sutherland gave evidence by way of statement that on 28 November 2019 he also attended the briefing and was advised that G had been communicating with a female on messaging applications making arrangements to sexually abuse children. He was allocated the role of exhibits officer. At 12.35pm, he attended G’s address and was present for the search of those premises whereby a number of exhibits were seized.
Detective Sutherland gave evidence that he was in the group of officers who subsequently attended the accused’s address at 2.10pm. He remained outside and was not present for any interview.
A number of witnesses were called to give oral evidence.
Detective Brevet Sergeant Dalton gave evidence that she was a member of the investigation team on the day in question and attended the briefing given by Detective Coombes. She attended G’s property and took the video of police speaking to G. She did not take part in the events directly concerning the accused.
Detective Sutherland was called to give supplementary oral evidence. He said the briefing given by Detective Coombes was in relation to the online activities of G and in particular, the allegation that G had communicated with an undercover police officer and had committed offences in relation to child exploitation material. Detective Sutherland attended G’s premises and undertook the role of exhibits officer. He noted that G’s phone was located in his left tracksuit pants pocket shortly after he had been placed under arrest. Access was had to that phone when G provided the PIN code.
Detective Sutherland gave evidence that police left those premises at around 2.00pm to attend the accused’s address (a given address) to speak to the accused who at that time they believed was ‘probably’ G’s partner. He said that at that time it was, so far as he was aware, more of a welfare check. Accordingly he remained outside and did not initially intend to exercise his general search warrant. He said that he was aware that certain images of a child had been located on G’s phone and that officers believed that that child was linked in some way to the occupant of the (given) address. He did not personally search or review the phone in question.
In cross-examination, Detective Sutherland agreed that he had been told by Detective Coombes that G had made admissions to sexually abusing a child of his ex partner, potentially a child who may have been residing at the (given) address. There was, however, no discussion ahead of their attendance of any proposed search. Rather, the focus was to check on the welfare of a young child that it was suspected may have been residing at the premises and ensure that the child was safe, together with speaking to the occupants of the premises.
He said it was only when officers reviewed the accused’s phone, and located communication and images between her and G that implicated her in the offending, that he made the decision to exercise his general search warrant. It was only then that he had reasonable cause to suspect that the accused was herself involved in the offending.[2]
[2] T51.
Detective O’Callaghan was called to give supplementary oral evidence. Detective O’Callaghan described the communications with G that formed the basis of suspicions concerning him. Those communications with G continued until 27 November, the day prior to police arresting G.
Detective O’Callaghan also attended the briefing given by Detective Coombes on 28 November, which he said was for the purpose of attending at G’s address and arresting him in relation to the communications.
Detective O’Callaghan said that upon the location of G’s phone, he reviewed its contents and located two images of a naked female child. He recognised that child from open source information, and believed it to be the accused’s daughter.[3]
[3] T61.
Detective O’Callaghan said that having located those photographs, he spoke with Detective Patterson with a view to making sure that the accused’s daughter was safe. That was the reason police travelled to the accused’s address. He said that during the conversation with the accused for the purposes of telling her that police believed that her daughter had had some intimate photographs taken of her, ‘it then became apparent that the accused was involved in the taking and dissemination of those photos’. Upon the arrest of the accused, Detective O’Callaghan’s role was corroborating officer for the purposes of the subsequent interview.
In cross-examination, Detective O’Callaghan agreed that prior to 28 November 2019, his covert communications with G had led him to believe that G had acted in a sexual manner towards his ex girlfriend’s five year old daughter. He said that during the 28 November 2019 briefing, he did not believe that the accused's name was raised. He had information about her, but not as a person of interest or potential offender.
Detective O’Callaghan agreed that a purpose for attending the accused’s home at (a given address) was to ascertain how it came to be that G had photographs of the accused’s daughter on his phone, and to confirm that it was in fact the accused’s daughter who had been photographed. Detective O’Callaghan said it was not initially intended to examine electronic devices or execute a search warrant at the accused’s premises. He said the only reason there were a number of police present was that they had all been at G’s address and were all in the same car with the same equipment, and so just came along.[4]
[4] T68-69.
Detective O’Callaghan said that a request was made to see the accused’s phone which was then taken outside the premises and given to electronic crime officers. Shortly afterwards, those officers told him there were Facebook Messenger messages on that phone between the accused and G, revealing that the accused had sent naked images of the child to G.[5]
[5] T71.
Detective Coombes was called to give supplementary oral evidence. She told the court that she had been made aware of Detective O’Callaghan’s undercover communications with G involving child exploitation material, and she conducted the briefing on 28 November 2019 prior to police attending G’s address.
Police then attended G’s premises for the purposes of locating and arresting him over those communications. Shortly after G’s arrest, his phone was examined by the digital evidence police officers present. Detective Coombes remained with G when other officers travelled to the accused’s house.
In cross-examination, Detective Coombes gave evidence that at the time of the 28 November 2019 briefing, police understood that G had been visiting the address of the accused and police assumed that he had been in a relationship with her. Detective Coombes agreed that at the conclusion of the briefing, the police intention had been to locate G, search him and his premises and arrest him. Detective Coombes said that at that stage they did not contemplate the possibility that there may be an investigation in relation to the accused. Detective Coombes said that so far as she was concerned, that contemplation did not change during the course of the day as she did not attend the accused’s home and was not involved in police contact with her.[6]
[6] Detective Coombes was not at that time the investigating officer, she was appointed investigating officer at a subsequent time.
Detective Coombes agreed that she was part of a conversation that led to the decision that police officers attend the accused’s house. Prior to the decision being made, she was aware that there had been pornographic images located at G’s home including photographs said to be of a naked child, and she had been told by another officer that those photographs were photographs that the officer recognised as the accused’s daughter.
Detective Patterson was called to give supplementary oral evidence. He also attended the briefing given by Detective Coombes on 28 November 2019 and then attended G’s premises for the purpose of arresting him and subsequently searching the premises. Detective Patterson’s role was supervisor at that location.
Detective Patterson said that in the course of that search he was made aware that pictures of a young girl, possibly MP the daughter of G’s girlfriend, were located on G’s phone. As a result, police decided to attend MP’s address at (given address) to establish how G came to have photographs of MP on his phone and also to establish if those photographs were taken at that address or possibly another address. Those actions were part of the ongoing investigation of G. Detective Patterson said as supervisor he made the decision to attend that address but did so in consultation with Detective Coombes who was the arresting officer of G.[7]
[7] T110.

Detective Patterson said that he attended the accused’s address at 2.10pm on 28 November together with Detectives O’Callaghan, Sutherland, Tsoulos and three digital evidence members.
Detective Patterson gave evidence that on arriving at the address police walked to the front door and knocked. They saw a person in the premises and asked her to come to the front door. They identified her as the accused.
Detective Patterson gave evidence that he explained that the reason for their attendance was that they had arrested G and were making enquiries in relation to that investigation. They asked the accused if they were able to speak to her in relation to that matter and the accused invited them into the house. Detective Patterson explained to the accused that they were there in relation to G being arrested for child sex offences. The accused said that she was aware of some videos, which prompted Detective Patterson to tell the accused to stop. He requested a video recorder to record the conversations that were to ensue.
Detective Patterson said that police asked the accused if they could take possession of her phone and review the contents to which she agreed. No request for a PIN was made at that time. The phone was handed to the digital evidence members of police.
At the time the recorded conversation with the accused commenced, Detective Patterson said he did not suspect that the accused had committed any offences at all. He said that it was only during their conversation when the accused made an admission to him that she had taken a photograph of her daughter that he had a belief she may have committed a criminal offence, so he immediately cautioned the accused but continued to speak with her.[8]
[8] T113.
Detective Patterson indicated that during the course of the conversation that ensued he was able to establish the accused’s role in what had occurred, and together with information about messages, he believed the material established that the accused had provided naked photographs of her daughter along with those messages. As a result, he then believed the accused had committed an offence of disseminating child exploitation material.
The recorded interview between Detective Patterson and the accused was tendered.
The interview commenced at 2.18pm with Detective Patterson introducing himself as a detective from the Joint Anti Child Exploitation Team in Adelaide. The accused then provided her personal particulars together with details of her children, including daughter MP, aged 6.
The following conversation then occurred:
QSix. No worries. Okay (accused's name) so the reason we’ve come around here is because earlier today we’ve arrested (G)
A     Mm hm.
QAt his home address. It’s been in relation to numerous child sex offences.
A     Mm hm.
QCan you just explain to us, what’s your relationship with (G).
AEr, he’s my boyfriend.
Q     Okay. How long have you been a couple.
A     Er about 15 months.
QOkay. No worries. And do you agree that we’ve attended here today, I’ve knocked on the door, I’ve introduced myself, we’ve come in here. I’ve told you it was in relation to the arrest of (G), and at that time we’ve asked if we could examine your mobile telephone-
AYeah.
QAnd also your laptop computer. You’ve agreed to that, and you’ve given us the password, and you’ve freely let us have a look at those devices.
AYeah.
QIs that correct.
AYeah
QBeautiful. As I said, we’re investigating child exploitation offences, and in relation to P, is there anything off the cuff, you can tell us about that.
AI said all I know, that he has got a few little videos of something on the computer. That’s about all I know.
QRight. And when you talk about his computer what are you, what, what computer is that.
AEr, his, I think it’s his Acer laptop.
QOkay, so it’s a laptop.
AYeah.
QIs that one that he’s had at his house. Yeah. And what did those videos involve.
AUm, it’s just little girls on his-, I know he’s got a fantasy for it, but I know he’s never done anything with them.
QRight. When you say, little girls, on those videos.
AMm hm.
QWhat sort of age bracket are you talking about.
AUm, some, I think, have been five, then ten.
QYeah. Did you watch them.
AYeah.
QWhat, what did they involve.
AUm, sort of, girls sucking guys dicks, um, guys playing with the little girls, that was it.
QYeah. And you mentioned that (G)'s got a fantasy about this.
AMm.
QCan you just explain that a bit more, what it’s, what do you mean by that.
AUm, I know he’s never ever followed through, especially with my little girl, um, er, he like to, I don’t’ know, it’s a bit of a turn on for him, if he starts sort of looking at little girls, or something, I don’t know, just something, I don’t know what it is.
QRight. Okay. You just brought up then about your daughters.
AMm.
QHas there ever been any connection with-
ANo.
QHim, and, and the children, your children at all.
AWell, my girl goes over and stays over there with me when I go stay there, but that’s it, and he stayed here with her, and-
QYeah.
ABut he’s never ever touched her.
QRight. Has he ever shown any inkling or attraction at all towards-
ANo.
QYour children.
ANuh.
QNo. Has he ever taken any photographs of the kids at all.
AOh, for birthdays and, sort of, when we’re on outings, and that’s about it.
QYeah. I’m talking probably in children being naked or-
ANuh.
QAnything like that.
ANuh.
QAnd in the shower, or bath-
AMm-
QOr anything along those lines
ANuh.
QNo. Okay. Part of our investigation has found some photographs-
AMm.
QWhich involve (MP) or-
AMm.
Q     We think is (MP), in the bath, so laying naked in the bath.
AMm.
QDo you know those-
AYes, I do now about them because I’m the one who’s taken them.
QRight. Okay. You took those photographs.
AMm hm.
QYeah. And how did he come to have those photographs.
ALike I said, it’s a fantasy thing he’s got, when we were joking around.
QRight.
AIt was more, more of a joke than anything
QYeah. Okay. No worries. Okay. I wanna ask you some further questions.
AYeah.
QOkay. You’re not required to answer any of them-
AMm hm.
QBut anything you do say will be recorded-
AMm hm
QAnd it might be, may be used in evidence. Do you understand that.
As indicated, the questioning was initially directed to G’s activities and what the accused knew about them. Then police indicated that they had located photographs of the accused’s daughter naked in a bath to which the accused’s response was that she knew about them because she took them. When police asked how G came to have those photographs, the accused responded ‘like I said, it’s a fantasy thing he’s got when we were joking around…it was more of a joke than anything’.
At that point, Detective Patterson ceased asking questions to formally warn the accused that whilst he was going to ask her further questions, she was not required to answer them but anything she did say would be recorded and might be used in evidence. He then formally introduced the police officers present and warned the accused that it was an offence to make a recording of that nature and share it.
The accused initially denied that it was for G’s pleasure and said it was ‘only a muck around thing’. Detective Patterson then asked about the domestic arrangements between them and other matters relating to G and children. Detective Patterson asked the accused to expand on his attitude and his fantasy about having sex with children. The accused maintained that she sent the photographs to the accused as a part of a process of ‘merely joking around’.
The interview was then paused and resumed at 2.42pm. Detective Patterson commenced the resumed interview by informing the accused that police had now searched her premises, located photographs and records of conversations between herself and G including photos of naked children. He told her that as a result she was being arrested in relation to the production and dissemination of child exploitation material. He then informed her of her rights:
QOkay. So as an arrested person you’ve got some rights, okay. You’re entitled to make a telephone call to a nominated friend or relative to inform that person of your whereabouts. Do you understand that.
AYes.
QDo you wish to make a phone call to anyone.
AYeah
QYeah. Who would you like to call.
ATo (a named person).
QSorry.
A(A named person).
Q(A named person). That’s your daughter.
AMm hm.
QDo you know (a named person)’s phone number off your, top of your head.
ANot off the top of my head, no.
QI take it the number is in your phone.
AYeah.
QYeah. In a second, I’ll take you out to my car, where you can have a seat there. I’ll allow you to have a phone call to her while we’re out there, okay. You are also entitled to have a friend, relative or solicitor present during any interview or interrogation to which you’re subjected to whilst in custody. Do you understand that.
AYeah.
QWould you like to have a friend, relative or solicitor present during any interview that I have with you.
AI don’t have a lawyer.
QRight. We can organise a lawyer for you if you like. Would you like us to get a lawyer or a friend, or a relative, to be present during these conversations.
AEr, a lawyer.
QSorry, a lawyer.
AMm.
QYeah. Okay so once again, when, after I’m finished here, we’ll do and have a seat in the car, and I’ll get you to make a phone call and we’ll organise a lawyer for you, okay. You’re also entitled to refrain from answering any further questions. Do you understand that.
AYes.
QWhat do you understand by that.
AThat I don’t have to answer any more questions.
QThat’s right. Okay. And from here, we’ll be conveying you to a police station where you’ll be able to apply for release on bail. Do you understand that.
AMm hm.
As indicated, the accused told police that she would like to make a telephone call to her daughter (a named person) and would like a lawyer present during any further conversations. At that, Detective Patterson said that ‘after I am finished here’ they would sit her in the car, get her a phone call and organise a lawyer for her.
Detective Patterson however then continued to ask questions. He initially asked for the PIN number for her mobile phone and other electrical devices, then for her Facebook password, and proceeded with some general further conversation before suspending the interview at 2.48pm.
The interview recommenced at 3.14pm at which time Detective Patterson told the accused that they had attempted to call her daughter and had left a message on her voice mail. Detective Patterson also told the accused that he had made a phone call to Legal Aid and arranged for the accused to speak with a solicitor over the phone. As a result of speaking with her lawyer, the accused indicated that she did not wish to answer any further questions and the interview was terminated.
Detective Patterson was cross-examined.
He repeated that he initially had no suspicions of the accused. Rather, he was speaking to her as a person who at that stage was likely to be either a victim or the parent of a victim of an offence. He said he initiated the video recording because he wanted to record her answers and reactions from that point forward as, in effect, the best evidence. Detective Patterson said that the request for the accused’s phone was simply part of investigating the offence against G and that she was not a suspect at the time of that request.[9]
[9] T119.
Detective Patterson agreed that he was aware that there was a suggestion that G had committed sexual offences in relation to his ex-girlfriend’s five year old daughter. He repeated that the accused was not a suspect at the time he attended her premises. He said that as the conversation progressed he came to believe she may have been involved in the offending and accordingly immediately cautioned her at that point. He said that it was only later when the messages had also been located that he believed that she had actually committed offences. He said that when he had in his mind established her level of involvement, he arrested her.
At the conclusion of Detective Patterson’s cross-examination he was asked why he continued to question the accused about the pin number of her phone and laptop given that she had just asked for a lawyer to be present. He responded: ‘because she’d previously spoken to us and it was up to her if she answered that question. Ultimately it didn’t matter whether that was gained or not’.
The accused was called to give evidence on the voir dire. The accused gave evidence that she was at home on Thursday the 28^th of November 2019. She said two men approached her house and introduced themselves as police officers. They told the accused they were detectives and that they had arrested G on child sex charges and wanted to ask her a few questions. Accordingly, she invited them inside and they sat down in her lounge room.
The accused said that Detective O’Callaghan asked if she had any devices, mobile phones or laptops and she answered yes. She handed her phone to police for examination and they accessed it. The accused gave evidence that she was ultimately arrested and given arrest rights, which included being told she could have a lawyer, friend or relative present during any conversation. She said that she wanted a lawyer because they were placing her under arrest. She said that prior to that, she did not understand that the police were investigating matters relating to her daughter. She thought that they were just investigating G’s charges. The accused said she’d only had contact with police once before in the early 2000’s; a driving matter in Western Australia.
Factual Findings
The court has carefully considered and re-read the evidence of each witness and had regard to all of counsels’ submissions. The court is aware that this is a pre-trial hearing and that accordingly factual findings and witness assessments should be strictly limited to the issues relevant to the voir dire, and that an open mind must be maintained for any subsequent trial.
All the witnesses that gave evidence on the voir dire; the police officers and the accused, gave evidence in a matter of fact and straight-forward way. Each was apparently credible and broadly consistent over their respective periods in the witness box.
Accordingly, the court accepts on the balance of probabilities for the purposes of the voir dire that at the time police attended the accused’s house they were doing so for the reasons stated i.e. to locate and check on the welfare of the accused’s daughter and to further investigate allegations against G. Police had some information based on communications between G and the undercover operative, and from information gleaned at his premises that G had photographs of the accused’s child. The police had indications by way of communications to the undercover operative, that G may have had some involvement with that child. At that time, they did not suspect the accused of having committed an offence.
At the time the officers attended the accused’s premises they did not have any evidence suggesting that the accused was disseminating child exploitation material to G or offending against her own daughter.
It was only as their discussion with the accused progressed that they began to suspect that she may have committed an offence.
The court accepts Detective Patterson’s evidence on the balance of probabilities that he warned the accused that she did not have to answer any questions at the point he formed a suspicion that she may have been involved.
The court accepts on the balance of probabilities that he warned the accused and delivered her rights at the point he formed a reasonable suspicion that she was involved in offending against her daughter.
The Law
The obligations of police officers in relation to asking questions of a person vary depending on whether they are at an investigatory stage or whether they have progressed to an accusatory stage.
During the investigatory stage the law does not require police to administer a caution before asking questions.[10] The rationale is that there can be no question of involuntariness or unfairness because at the investigatory stage a police officer is simply gathering information or giving the possible suspects the opportunity of clearing themselves.[11] While within the investigatory stage, there is similarly no requirement for police to inform a person whether others have been arrested, nor the nature of the offences being investigated.
[10] R v Dolan (1992) 58 SASR 501 at [505].
[11] R v Dolan (1992) 58 SASR 501 at [505].
Once a police investigation has progressed to the accusatory stage, it is incumbent on police officers to caution the accused before asking any further questions. The rationale is to ensure that a suspect is fairly treated and that their right to silence is protected.[12] Similarly, the law requires that police deliver the rights of a person under arrest as soon as reasonably practicable after the person has been apprehended.[13]
[12] Ibid.
[13] Section 79A(3) Summary Offences Act.
In Van der Meer v R, Mason CJ observed that the accusatory stage may have begun when a police officer has made up his mind to charge the suspect with a crime, when a suspect is taken into custody, or when a suspect has formally been charged.[14]
[14] Van Der Meer v R (1998) 62 ALJR 656 at [661].
Conclusions
The court is satisfied on the balance of probabilities for the purpose of the voir dire that the accused was both warned and afforded her rights at the appropriate times in the process that she was entitled to them. Hence no unfairness arose at those stages of the interview.
On the other hand, it is clear that upon being informed of her rights the accused indicated she wished to exercise her right to have a lawyer present for the purposes of any further interview. She also indicated that she wished to exercise her right to make a phone call. It was incumbent on police at that time to cease substantive questioning of the accused and afford her those rights. It is not sufficient for police to continue to question an accused on the basis that they will act on the accused’s requests for a phone call and for legal representation at some convenient later time. Accordingly, from that time on it was unfair to continue questioning the accused.
Detective Patterson’s reason for continuing to ask the questions that, in effect, it didn’t really matter because they could have accessed the pin codes and passwords concerned by other means, is not to the point.
Whilst I do not find that Detective Patterson was deliberately attempting to treat the accused unfairly, it was in an objective sense unfair to continue the questioning.
Accordingly, a discretion to exclude the remainder of the interview is enlivened in accordance with well recognised principles.[15] The exercise of the discretion involves balancing a number of important factors:
1.The seriousness of the alleged offending.
2.Whether the unfair conduct involved conscious impropriety or deliberate or reckless disregard for the police officer’s obligations.
3.The nature and extent of the unfairness.
4.The ease with which compliance with the police officer’s obligations could have been achieved.
5.The apparent purpose or objective of any statutory requirement that was not complied with.
6.Whether the unfair circumstances in which the evidence has been obtained has affected the cogency of the evidence.
[15] R v Ireland (1970) 126 CLR 321; Bunning v Cross (1978) 141 CLR 54; R v Nguyen (2013) 117 SASR 432; Ollard v R (1992) 176 CLR 171; R v Golja [2017] SASCFC 61; Matthews v R [2020] SASCFC 1.

In this matter the alleged offending is very serious. The police conduct involved continuing to ask substantive questions when the accused had indicated she wished to make a phone call and have a lawyer present; which is to disregard particularly important rights possessed by any accused person. The extent of the unfairness was relatively brief and did not result in the obtaining of a significant quantity of evidence, which such information obtained was lawfully obtainable through other avenues. The circumstances did not affect the cogency of the evidence. Compliance could easily have been achieved if police had simply waited until the accused’s rights had been afforded before continuing to ask questions.
At the end of the day, balancing all these factors, but having particular regard to the importance of police not continuing to substantively question a suspect when that suspect has plainly indicated they wish to make a phone call and have a lawyer present for the interview, the appropriate exercise of the discretion on this occasion is to exclude the remainder of the interview.