R v Tardrew (No 2) - [2021] SADC 37

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v TARDREW (No 2)
[2021] SADC 37
Ruling of her Honour Judge Deuter
1 April 2021
CRIMINAL LAW - PROCEDURE - WARRANTS, ARREST, SEARCH, SEIZURE AND INCIDENTAL POWERS
CRIMINAL LAW - EVIDENCE - PROPENSITY, TENDENCY AND CO-INCIDENCE - ADMISSIBILITY AND RELEVANCY - PROPENSITY EVIDENCE
Accused is charged with Trafficking in a Controlled Drug - police stopped the accused's vehicle for a licence check. A search of the vehicle located a substance containing methylamphetamine. Police also located $465.00 cash and two mobile phones with encrypted messaging applications thereon.
(1) Whether the accused opened the two phones voluntarily, or as a result of unlawful actions by police officers - obligations of police upon seizing mobile phones.
(2) Notice of Intention filed by Director of Public Prosecutions to adduce evidence of discreditable conduct of the accused - intention to lead the evidence of the $465.00 cash and the two mobile phones as propensity evidence pursuant to s 34P (2) of the Evidence Act (SA) 1929. The accused objects to the evidence being use for a propensity purpose.
Held:
1. The accused voluntarily opened the two mobile phones for police.
2. The police did not act with impropriety in their interactions with the accused that led to the phones being opened.
3. The accused's application to exclude the evidence of the mobile phones is dismissed.
4. The combined evidence of the $465.00 cash and the two encrypted messaging services on the mobile phones:
(i) is not evidence that the accused had engaged in discreditable conduct in the past pursuant s 34P(1) of the Evidence Act;
(ii) is not admissible as evidence of the accused's propensity to engage in the business of trafficking drugs pursuant to s 34P(2)(b) of the Evidence Act.
Controlled Substances Act 1984 (SA) ss 32(3), 52(6); Evidence Act 1929 (SA) ss 34P(1), 34P(2)(b); Summary Offences Act 1953 (SA) ss 74D, 67, 68, referred to.
R v Tardrew [2021] SADC 7; Middlin-Hannah v The Queen [2020] SASCFC 112; Bunning v Cross (1978) 141 CLR 54; R v Soteriou [2013] SASCFC 114; BNM v The Queen [2020] SACFC 10, considered.

R v TARDREW (No 2)
[2021] SADC 37

CRIMINAL
Introduction

The accused, Helen Tardrew, is charged with one count of Trafficking in a Controlled Drug, namely methylamphetamine, at Elizabeth South on 30 March 2019, contrary to s 32(3) of the Controlled Substances Act 1984 (SA). Ms Tardrew was found in the possession of 55.6 grams of substance containing methylamphetamine after her vehicle was stopped and searched by Constables Bakkelo and Filosi of South Australia Police (‘SAPOL’).
The search of Ms Tardrew’s car was found to be legal by another Judge of this Court, dismissing an application to exclude any evidence obtained from that search.[1]
[1] R v Tardrew [2021] SADC 7.
The Applications
Ms Tardrew filed further applications to exclude evidence. The first application seeks to exclude the contents of two mobile phones found in a handbag during the search of her car. Ms Tardrew’s counsel (‘defence counsel’) submitted that she was importuned into providing police with access to the phones, notwithstanding her response to police that she wished to receive legal advice before responding to their request that access to the phones be facilitated by her.
The second application relates to a discreditable conduct notice filed by the Director of Public Prosecutions on 23 May 2020 in respect of $465.00 cash located in a purse seized by police from the defendant’s car on 30 March 2019, and the contents of the two mobile phones seized as a result of the same search. The prosecutor submitted that the $450.00 cash demonstrates that Ms Tardrew was in the business of dealing drugs and had the propensity to sell drugs. Her propensity to do so makes it more likely that she was in possession of the methylamphetamine with the intention to sell it.
The two mobile phones contained encrypted messaging applications: ‘DuckDuckGo’ was found on one, ‘Signal’ on the other. The prosecution’s case is that these applications are used by persons who sell drugs. They again submit that this evidence establishes that the defendant has a propensity to sell drugs and that she intended to sell the methylamphetamine located in her vehicle.
Mr Tardrew opposes the use of evidence for a propensity purpose on the ground that the foundation for drawing the inferences has not been established by the prosecution. The prosecution disagrees, relying upon the evidence of Detective Brevet Sergeant Johana Dalziel (‘DBS Dalziel’) as contained in her affidavits of 19 January 2020 and 13 October 2020.
If I find that the evidence of the contents of the two mobile phones should be excluded, then the prosecution concedes that ‘… the cash in and of itself … isn’t particularly probative’.[2] The prosecution submitted that it is the existence of the encrypted applications and the cash when considered together which allow for the propensity reasoning.[3] The prosecution has conceded that if Ms Tardrew is successful in her application to exclude the evidence of the contents of the two mobile phones, they cannot rely upon any other discreditable conduct evidence.
[2] T13.1-2.
[3] T12.14, T135.32-37.
Seizure and Search of the Mobile Phones
It is not disputed that, on the basis of the earlier ruling, the search of Ms Tardrew’s car was legal, and that the police had the right to seize items in the car, including the two mobile phones.[4] The issue of the seizure and search of mobile phones was recently considered by the South Australian Supreme Court, sitting as the Court of Criminal Appeal, in Middlin-Hannah v The Queen[5] where it was held that seizure of electronic devices would usually lead to the police being able to forensically test the phones and extract material from them.[6] In this case, defence counsel argued that the actions of Constable Bakkelo that led Ms Tardrew to her open the phones ‘… trampled upon the rights of an arrested person in a way that this court should not tolerate’.[7]
[4] T144.9-23.
[5] [2020] SASCFC 112.
[6] Ibid at [178] Bleby J.
[7] T145.24-26.
The two mobile phones found in Ms Tardrew’s car were a HTC smart phone (‘the HTC’) and a Samsung smart phone (‘the Samsung’). The Samsung was a relatively new phone. The HTC did not have a SIM card in it, and Ms Tardrew said she used it for her contacts and photographs that had not yet been transferred. Constable Bakkelo asked for the access code to both phones while he conversed with Ms Tardrew at the roadside; this occurred before Ms Tardrew was arrested. After some discussion, Ms Tardrew took the HTC from him and opened it before handing it back.
The Samsung was never handed to Ms Tardrew by Constable Bakkelo, as Constable Filosi interrupted their conversation, indicating that it was time for them to leave for the police station. All of the interactions between the police officers and Ms Tardrew at the roadside regarding the phones were captured on the body-worn camera footage of the two officers.[8]
[8] Exhibit VDP1.
After having opened the HTC, Ms Tardrew was placed in a police car and arrested for trafficking in a controlled substance (the type of the drug was unknown at that point in time). She was then conveyed to the Elizabeth Police Station where she was processed and placed in a holding cell. Whilst she was in that cell, Ms Tardrew was approached by Constable Bakkelo. He asked her to open the Samsung. She complied.
The interactions between Constable Bakkelo and Ms Tardrew in the holding cell at the station were not captured on Constable Bakkelo’s body-worn camera. He did not turn his camera on. No other camera footage of the cell or surrounding area was available. Without any audio-visual recording of what occurred whilst the defendant was in the holding cell, the circumstances leading to the opening of the Samsung rely upon the evidence of Constable Bakkelo and Ms Tardrew. In her oral testimony, Ms Tardrew said that she only opened the two phones as a result of police pressure, badgering and threats of being charged with another offence (i.e., hindering police in an investigation).
The two mobile phones were retained by police following their seizure. The phones were sent to the Electronic Crimes Section of SAPOL (‘E- Crime’) to allow for the information on those phones to be extracted. This occurred in October 2020 and the contents of both phones were provided to Constable Filosi. The encrypted messaging applications (‘Signal’ and ‘DuckDuckGo’) were found on the HTC and Samsung respectively. Constable Filosi had seen both of these messaging applications on 30 March 2019 after the phones had been opened by Ms Tardrew. No messages of interest were later extracted from the HTC by E-Crime. A number of messages considered to be relevant to the prosecution of Ms Tardrew were, however, extracted from the Samsung.
Legal Principles: Seizure and Search
In Middlin-Hannah, the CCA considered whether text messages from a mobile phone should be allowed into evidence after the appellant had provided the PIN for the phone. The appellant’s phone had been seized using a general search warrant pursuant to s 67 of the Summary Offences Act 1953 (SA) (‘the Summary Offences Act’). After the Court had held that the phone had been legally seized pursuant to that warrant, their Honours turned to consider whether the manner in which the investigating police officer had spoken to the appellant when seeking the PIN would lead to the evidence from the phone being excluded. The appellant had not yet been arrested, and consideration was given to whether, having found a small quantity of cocaine and a large amount of cash at his home, the investigation had reached the ‘accusatory stage’, meaning that the appellant should have been cautioned as to his right to silence at the time the PIN was requested by police. Having found that the seizure of the appellant’s smart phone was legal, Kourakis CJ stated:
…there was no impropriety in giving Mr Middlin-Hannah the option of providing the PIN to allow access to his smartphone. Indeed, there is much utility in adopting that procedure. For those persons who are wrongly suspected, the option of avoiding the seizure of their property, with all the inconvenience that entails, is a useful one. The issue is now most likely to arise when seizing electronic devices, but the same principle would apply to the safe or locked filing cabinet of earlier times. An occupant may choose to avoid the potentially destructive forced opening, or removal, of a cabinet from his or her home by providing the key or code to open it. As long as the power to seize is not deliberately misrepresented, the giving of an option serves the public interest.[9]
[9] Middlin-Hannah at [85].
There is an important qualification to this, namely the privilege against self-incrimination. This extends to the handing over of documents or other items which may incriminate the suspect. In this regard, Kourakis CJ noted that:
It may undermine that privilege if a police officer were to seek assistance from a suspect to access his or her documents, which the police officer believes may contain incriminatory evidence, without informing the suspect of his or her privilege not to facilitate the seizure of that documentary material if it may be incriminating. Of course, a failure to warn is only legally significant if the request is made at a time, and in circumstances, which would so compromise the privilege that it would cause forensic unfairness in a subsequent criminal trial.[10]
[10] Ibid at [86].
The time and circumstances which would comprise the privilege are brought into play once police have reached the accusatory stage of an investigation. At that point, an accused must be cautioned before interrogation continues.[11] In Middlin-Hannah, Kourakis CJ was of the view that the investigation had reached the accusatory stage, and, in those circumstances, the privilege against self-incrimination would have been compromised if the appellant had provided the PIN for his phone, only because the investigating officer had led him to believe that he had no alternative but to do so. Although the investigating officer had given the appellant a choice to provide his PIN or lose the use of his phone whilst it was being forensically examined by police, there was evidence from which it could be concluded that the appellant did not fully understand that he could refuse to provide his PIN. If he had been given a caution, he would have had an informed choice as to whether to waive his privilege against self-incrimination. Justice Bleby found that in relation to the exchange with the investigating officer, he was not prepared to conclude that in the circumstances of the search and seizure of the phone it was sufficiently apparent that there was a genuine choice given to the appellant not to provide the PIN.[12] The officer should have administered a caution.
[11] Ibid at [87].
[12] Ibid at [176].
Chief Justice Kourakis did not come to a final conclusion, as in his view the appellant had not established that the police would not have been able to gain access to the contents of his phone without the PIN. As a result, there was no forensic unfairness, nor was there any basis on which to exclude the evidence of the disputed text messages.[13] Justice Bleby agreed with this conclusion and found that the appellant had not discharged his onus to persuade the Court to exclude the evidence of the text messages in the exercise of its discretion.
[13] Ibid at [96].
Justice Livesey agreed that the police had power to retain property seized pursuant to s 68 of the Summary Offences Act as an extension of common law principles. He stated further:
In addition, I would regard it as a natural concomitant of the power to seize and retain property – here, a mobile phone – that police may then open the phone, if necessary, with the assistance of those with technical expertise in what is termed the ‘E-Crime’ section of South Australia Police, for the purposes of investigation.[14]
[14] Ibid at [138].
Livesey J agreed that police should not interrogate a person without providing a caution once they have reached the stage where they have reasonable grounds for suspecting them of committing an offence. He also agreed with Kourakis CJ and Bleby J that the investigating police officer had, in effect, provided a direction to the appellant to provide his PIN, rather than providing him with a choice to do so. In relation to the ‘unfairness discretion’ and its use to allow in the evidence of what was found on the phone, His Honour noted that:
The unfairness discretion exists to ensure a fair trial for an accused, not to protect from unfairness in any general sense. If the act of the appellant telling police his passcode is to be regarded as a form of admission or confession, given in the absence of a proper caution, it is nevertheless hard to see why the proper exercise of the unfairness discretion requires the exclusion of the evidence. Police did not deliberately or otherwise, misstate the legal position.[15]
[15] Ibid at [152].
In Middlin-Hannah, there was no suggestion that the investigating officer deliberately exploited his position of power when he asked the appellant for the PIN, nor that he misled him when explaining what would happen to the phone if he refused to provide it. There was power under s 68 of the Summary Offences Act, (and as supplemented by the common law), to seize the phone and unlock it.[16] There was no suggestion that the failure to caution had affected the cogency or quality of the evidence on the phone. The failure to caution had not given the police any identifiable advantage. After locating the illegal substances, police were entitled to suspect that the phone would have contained evidence as to the commission of an offence within the scope of s 68 of the Summary Offences Act:
…any illegality or impropriety associated with procuring the appellant’s passcode without a caution is outweighed, and in my view, strongly outweighed, by the desirability of admitting highly relevant, important and admissible evidence of serious criminal wrongdoing. Ultimately, this evidence appears to have been critical to the prosecution case.[17]
[16] Ibid at [156].
[17] Ibid at [159].
Evidence on the Voir Dire
On the voir dire, the prosecution called evidence from Constable Bakkelo and played an audio-visual recording of the body-worn camera footage that was taken by Constable Bakkelo and Constable Filosi on 30 March 2019.[18] I was provided with a transcript of the footage from Constable Bakkelo’s camera, being Appendix L to an affidavit of Constable Filosi dated 7 January 2021.[19] Although this transcript was never formally tendered, both counsel referred to it in detail during the hearing and in their closing submissions. Several affidavits were also referred to by the prosecution, although not formally tendered. No objection was made by defence counsel in respect of me relying upon that affidavit material.
[18] Exhibit VD P1.
[19] Exhibit VD MFI P2.
The credibility and reliability of Constable Bakkelo was challenged by defence counsel. In his final submissions, he described Constable Bakkelo’s behaviour as ‘unlawful’. He did not, however, suggest that his evidence was completely untruthful, rather, that he displayed a misunderstanding of his authority in relation to obtaining access to Ms Tardrew’s phones. He submitted that Constable Bakkelo placed pressure on Ms Tardrew to open her phones, particularly when he stated that she would be ‘hindering’ their police investigation in relation to an indictable offence if she did not do so. I will consider the evidence in some detail and then make my conclusions regarding the important aspects.
It is not disputed that Constable Bakkelo spoke at all times in a calm, if not a friendly way to Ms Tardrew and was not at all aggressive in his manner. The issue is in relation to his failure to provide an adequate caution as to Ms Tardrew’s right to silence, and he telling her twice that she would be hindering their investigation if she did not open the phones.
The only other evidence given on the voir dire was from Ms Tardrew. She approached her evidence carefully, taking her time to answer the questions put to her. When she did not know if a response was correct or she was unsure, she would state so. However, for the reasons that I have outlined below, I do not always accept her evidence.
I will not review the evidence in relation to the matters that led to the search of Ms Tardrew’s car nor the search itself. These matters are set out in detail in the first voir dire judgment.[20] Defence counsel submitted that this case could be distinguished from Middlin-Hannah upon the basis that Constable Bakkelo behaved with such impropriety towards Ms Tardrew that his behaviour was unlawful. This was especially so in overriding her right not to answer questions.
[20] R v Tardrew [2021] SADC 7.
The HTC Phone
Body-worn camera footage captured Constable Bakkelo’s interactions with Ms Tardrew at the roadside after she had alighted from her car. This was in two parts. Prior to the search of her car being completed and the substance being found, the following was recorded:
Bakkelo… I’m just gonna ask you some further questions, you’re not obliged to answer them, anything you do say …
TardrewNo I won’t be answering questions.
BakkeloMay be taken down and used in evidence alright. No I am letting you know so, that you’re aware we are recording this conversation, alright, and I’ve given you that caution.

Soon after, Constable Filosi found what she believed to be drugs in the car together with the $465.00 cash and the two mobile phones. When the drugs were found, the officers described them as ‘heaps’ and ‘trafficking for sure’. Constable Bakkelo then took the phones with the intention of searching the contents. Constable Bakkelo discussed which phone Ms Tardrew uses and how they were unlocked. He asked her to open them for him:
BakkeloOkay. Use fingerprint or enter pin? Alright what’s the pin code for this phone?
TardrewSorry
BakkeloYou don’t know? Or you’re not gonna give it to me?
TardrewNo I’m not gonna give it to you
BakkeloOkay, you understand that
TardrewActually I don’t know the pin code, I have to use my finger
BakkeloOkay, well can you put your finger on there, I’d say quite easily
TardrewI would say that I could too
BakkeloSo, you understand that you’d be hindering our investigation by not opening this phone up, by law, with what we’re investigating here, I have the authority to go through the phone, alright, in relation to investigating an indictable offence, alright, by you not giving me access to this phone, could be hindering my investigation
TardrewI wanna speak to a lawyer before I do
BakkeloAlright that’s fine, I’ll let you know though, if you don’t give it to us, we’re gonna send it to e-crime anyway, and you’re not gonna get it back for 12 – 24 months. I’ll send both of them, alright.
Tardrew…… (inaudible)
BakkeloBecause I figure what I’m gonna find on these phones is …
TardrewYou won’t
BakkeloNothing?
TardrewNup
Bakkelo… so why would you not wanna open them for me. If there’s nothing on here, I’ll give em back, I have no issues.
TardrewBut you guys lie though
BakkeloI won’t lie, I’ll do it right here in front of you, it’s on camera, I’m not gonna lie to you, alright, if there’s nothing on these phones, I’ll leave em with ya, I have no issue. I’m not gonna lie to you, I ‘m being straight up, alright its up to you. I’m not trying to make your life difficult, I’m just telling you what’s gonna happen from here.
TardrewSo you mean to say, coz you won’t find anything
BakkeloYep
TardrewYou’re going to give them back to me
BakkeloIf there’s nothing on these phones, the evidentiary value of what we are investigating here, I’ll give both these phones back to ya …. I have no reason to keep them, alright.
Following this interaction, Ms Tardrew opened the phone she said was closest to her person, being the HTC. This was approximately two-and-half minutes after Constable Bakkelo had issued the caution to Ms Tardrew. Constable Bakkelo did not find any material of evidentiary value on the HTC before Constable Filosi took Ms Tardrew away to administer her arrest rights. This did not allow time for the Samsung to be opened, nor for the HTC to be thoroughly searched.
In his evidence, Constable Bakkelo confirmed that he was aware that Ms Tardrew did not wish to answer questions.[21] He did not continue questioning her beyond asking her to open the phones. He denied the suggestion that he threatened Ms Tardrew. I find that his manner, as shown by the body worn camera footage, was not threatening.
[21] T55.
Ms Tardrew was not under arrest whilst standing on the roadside. Constable Bakkelo’s evidence was that when the drugs were found in Ms Tardrew’s car, and were shown to him by Constable Filosi, he described them as ‘a lot’.[22] He was then motivated to search Ms Tardrew’s phones, as ‘there is usually good evidence on their mobile phones if they are trafficking’.[23]
[22] T70.
[23] T71.
Constable Bakkelo relied upon the powers in s 68 of the Summary Offences Act (as modified by case law) to advise Ms Tardrew that ‘by law’ she had to unlock the phones for him so they could be searched.[24] He did not perceive his use of the word ‘hindering’ as amounting to a threat or her breaking the law.[25] He intended it in the sense that she was making his job more difficult than was necessary.[26] He had no intention of charging Ms Tardrew with an offence if she did not open her phones.[27] Constable Bakkelo did not view Ms Tardrew as feeling pressured to open the HTC, although he confirmed that she was initially reluctant to do so. She agreed to open the HTC soon after being told that if she did not, she would have to surrender the phones to E-Crime for a period of up to 24 months. This statement did not amount to ‘pressure’ to open the phones. It was merely a statement of the reality of what would happen to them if she did not. He denied that this was a threat.
[24] T72.22-T76.16.
[25] T76.23-T77.11.
[26] T84.18-19.
[27] T95.5-6.
Ms Tardrew gave evidence that when stopped by police and while at the roadside she did not want to answer questions nor open her phones. She made this clear to Constable Bakkelo until he told her she would be hindering an investigation if she did not open the phones. At that point, she believed she would be arrested for an offence if she did not comply with the police requests. This intimidated her. She felt she had no choice but to open the phones. She took the HTC, which was closest to her person, and opened it.
Under cross-examination, Ms Tardrew acknowledged that she had been given a caution, and that she understood that she did not have to answer questions. She admitted that she nonetheless volunteered information to police about the phones.[28] She also agreed that Constable Bakkelo’s manner was ‘fairly reasonable’.[29] However, once the word ‘hindering’ was used, she felt she had no choice but to open the phone as she did not want to be charged with an offence.[30] She agreed that she was also concerned about not getting her phones back for 12 to 24 months, being particularly worried about the photos on the HTC.[31] She agreed that the time between the conversation with Constable Bakkelo regarding her surrendering her phones to E-Crime and her taking the HTC from him to unlock it was short in duration.[32] Ms Tardrew did not accept that this was the only reason that informed her decision to open the HTC at the roadside. She re-iterated that her concern was that she would be committing an offence if she did not open the phones.[33]
[28] T115.
[29] T118.
[30] T119-T120.
[31] T130.
[32] T120.
[33] T121.
The Samsung Phone
The Samsung was unlocked by Ms Tardrew in a holding cell at the Elizabeth Police Station after it was brought to her by Constable Bakkelo. His evidence was that she wanted a number to call a lawyer (the inference being that the number was stored on that phone). The Samsung was brought into the cell, but Ms Tardrew was reluctant to use her thumb print to open it. Constable Bakkelo again explained the consequences of the phone being sent to E-Crime if she did not open it for him.[34] He again made it clear that he intended to search the phone.[35] Constable Bakkelo’s evidence was that his manner was again clam and non-threatening. He employed the same tone that he had used at the roadside, as recorded by his body-worn camera. After opening the Samsung, Constable Bakkelo found that it contained the encrypted messaging application ‘DuckDuckGo’. He believed that the presence of this application could be evidence associated with drug trafficking and handed the phone over to Constable Filosi.
[34] T39.
[35] T42.
Under cross-examination, Constable Bakkelo explained that he had attended upon Ms Tardrew in the cell. She requested the Samsung so she could telephone her lawyer. He retrieved this from the Exhibit Bag, and then asked Ms Tardrew to unlock the phone. Ms Tardrew stated that she did not want to provide him with access to the Samsung.[36] He confirmed that he explained what this would mean with the phone being sent to E-Crime, as opposed to him returning the phone if he found no relevant evidence on it. Constable Bakkelo denied that he used this as a threat as opposed to merely setting out the process of what would occur.[37]
[36] T96.
[37] T96.
Constable Bakkelo did not make any notes of his conversation with Ms Tardrew in the holding cell. He described this as a mistake.[38] He was aware of his obligation to record conversations or interviews with a person charged with a serious offence. He could not recall why he did not turn on his body-worn camera,[39] and did not enquire about whether any audio-visual footage was taken in the charging area of the station, that houses the holding cells, was available for him to view.[40]
[38] T79.
[39] T82.
[40] T57.
Ms Tardrew confirmed that she opened the Samsung in the holding cell in line with the decision that she had made on the side of the road to open both phones.[41] She also confirmed that Constable Bakkelo had explained to her again that she had a choice to open the phone or it would be submitted to E-Crime after which she would not get it back for 12 to 24 months.[42] The concern about hindering police and a further charge in that regard was also at the forefront of her mind.[43]
[41] T125.
[42] T128 and T131.
[43] T132.
In cross- examination, Ms Tardrew could not be absolutely certain the word ‘hindering’ had been used by Constable Bakkelo when he came to see her in the cell with the Samsung. She confirmed that she had made the decision to open both phones for police at the roadside. She was taken back to the roadside footage and agreed that it was approximately one minute and 40 seconds after Constable Bakkelo had first told her that the phones would go to E-Crime for 12 to 24 months that she took the HTC and opened it. In between this period of time, Constable Bakkelo told her twice more that if he found nothing of evidentiary value on the phones, then he would give them back to her. The word ‘hindering’ is not used in this period, or again before Ms Tardrew opened the HTC. She acknowledged this but insisted that being charged with an offence was at the forefront of her mind.
Submissions
I have considered the detailed submissions of both counsel. In summary, defence counsel pressed that Constable Bakkelo was an unreliable witness and demonstrated a lack of recall. He was critical of the fact that his first statement was provided just short of three months after events and, even then, there were errors contained therein. No notes were taken of either conversation with Ms Tardrew, or no real explanation was given for the lack of video footage of the interactions in the holding cell. Defence counsel submitted that I should not have confidence in Constable Bakkelo’s reliability as he could not always recall the detail of his conversations with Ms Tardrew. In particular, Constable Bakkelo’s evidence shifted regarding how many times he spoke to Ms Tardrew in the cells and whether he had the Samsung with him. As in the first voir dire hearing,[44] defence counsel also pointed to the mistakes Constable Bakkelo had made before the search of Ms Tardrew’s car was undertaken, such as his direction of travel and him being less than candid with the Court about the reasons for correcting that direction. Constable Bakkelo’s answers in cross-examination on that issue in this hearing were described as unsatisfactory; he struggled to find a reason for the amendments that were made to his statement about the direction in which he was driving.
[44] T79.27.
The principal submission of defence counsel was that Constable Bakkelo had acted with serious impropriety in his interactions with Ms Tardrew. Firstly, he abrogated her right to silence, which she had expressed on three occasions, including once on the way to the police station. He also interviewed her in the holding cell without turning his body-worn camera on and without taking notes in breach of his obligations under s 74D of the Summary Offences Act and did not facilitate her right to talk to a lawyer as requested at the roadside and in the cell. He noted that Constable Bakkelo admitted it was a mistake not to take notes.[45] The failure to arrange for a lawyer to speak to Ms Tardrew when she was in the holding cell was answered by Constable Bakkelo in cross-examination, stating that Ms Tardrew wanted to speak to a lawyer before answering questions, not before unlocking the Samsung.[46] Her counsel described this as ‘splitting hairs’ and ‘a very fine line’.[47] Defence counsel submitted that Constable Bakkelo acted deliberately or was completely misguided in his interactions with Ms Tardrew and that this behaviour, ultimately described as ‘unlawful’,[48] meant that it could not be said there was any forensic unfairness as described by Bleby J in Middlin-Hannah.
[45] T82.29-30.
[46] T80.14-18.
[47] T142.32-33; T152.9-10.
[48] T157.1-7.
Defence counsel also described Constable Bakkelo as offering inducements to Ms Tardrew to open her phone, in that she would have it returned in a shorter time than if it were sent to E-Crime, and by making threats by stating she was hindering an investigation by not doing so.[49] He submitted that Constable Bakkelo put pressure on Ms Tardrew to open the phones. He did not stop talking to her, as shown on the body-worn camera footage. It was submitted that Constable Bakkelo implied at the roadside that if Ms Tardrew did not open her phones, she would be committing an offence, rather than simply exercising her right to silence. As a result, it was only due to Constable Bakkelo’s unlawful behaviours that Ms Tardrew opened both phones on the day she was arrested. The prosecution relied on the information found when the phones were opened, namely the two encrypted messaging applications, ‘DuckDuckGo’ and ‘Signal’, and not the information subsequently extracted from the phones by E- Crime. Defence counsel submitted that this, and Constable Bakkelo’s behaviour, distinguished the circumstances from those considered in Middlin-Hannah.
[49] T145.28-37.
The prosecutor submitted that there was nothing in Constable Bakkelo’s demeanour or in his interactions with Ms Tardrew that could be regarded as threatening. The body-worn camera footage at the roadside showed Ms Tardrew to initially be quite relaxed with Constable Bakkelo as they discussed how nice her car was, and she challenged him for speeding in order to pull her vehicle over. When directed to step up onto the footpath, Ms Tardrew was immediately issued a caution and warned that anything she said would be recorded and that it may be used in evidence. Despite saying that she would not answer questions, when Constable Filosi came over to them with the two phones Ms Tardrew, without being asked, volunteered that one (i.e., the Samsung) was a new phone; that her contacts and photos had not yet been transferred from the HTC; and that the HTC no longer had a SIM card. In her evidence, Ms Tardrew agreed that she had not been asked any further questions by Constable Bakkelo at that point.
The prosecutor observed that when the conversation turned to opening up the phones, Ms Tardrew initially indicated she would not do so. It is then that Constable Bakkelo said she may be hindering an investigation and that ‘by law’ he had authority to search the phones. This prompted Ms Tardrew to respond by saying she wanted to speak to a lawyer. The prosecutor submitted that, at this stage, Ms Tardrew was saying that she wanted to speak to a lawyer before agreeing to open the phone, and Constable Bakkelo did not object when he said ‘that’s fine’ before explaining what would happen to the phones if she did not open them. Ms Tardrew never sought any clarification from Constable Bakkelo regarding what he meant by ‘hindering’ and did not ask if she could be charged in relation thereto.
The prosecutor set out how it was one minute and 40 seconds between when Constable Bakkelo used the term ‘hindering an investigation’ and when Ms Tardrew took the HTC from him and opened it. She submitted that it is clear from the footage that Ms Tardrew was frustrated and annoyed and that her behaviour and demeanour indicated that her primary concern was that she would not get her phones back for a long time, not that she feared being charged with a further offence. In this regard, she confirmed that defence counsel had agreed that Constable Bakkelo spoke in a mild and courteous, if not persistent, manner.
The prosecutor relied upon the comments of Kourakis CJ in Middlin-Hannah[50] that there is no impropriety in giving an accused the option to provide a PIN code or access to a phone as opposed to losing it to E-Crime for a long period, and that giving such an option serves the public interest. She observed that Constable Bakkelo gave evidence that he believed he had authority to search the phones for evidence of the commission of an indictable offence; pursuant to s 68 of the Summary Offences Act. He believed, on his review of the case law (a task that he undertook prior to these events), that he was acting lawfully at all times in his interactions with Ms Tardrew.
[50] At [85].
The prosecutor accepted that Constable Bakkelo had misunderstood the extent of his authority under s 68 of the Summary Offences Act. She submitted that this was not of concern in relation to the issue to be determined, namely the admissibility of the content of the phones. The prosecutor noted that the phones were seized legally on the search pursuant to the concurrent powers in s 52(6) of the Controlled Substances Act and s 68 of the Summary Offences Act. Once the phones were lawfully seized, they could be retained and sent to E-Crime. However, given that the phones were legally obtained, police were entitled to search their contents if access could be obtained. She accepted that, in seeking access, a caution against self-incrimination should be given, but observed that this occurred on at least three occasions with Ms Tardrew, namely: at the roadside; when formally arrested by Constable Filosi on the way to the Elizabeth Police Station; and in the holding cell of that station.
It was submitted that Ms Tardrew was cautioned and given a choice to open the phones or to surrender them to E-Crime for a substantive period. She chose to open both phones while at the roadside so that she would not lose those phones. Constable Bakkelo did not deceive, threaten or intimidate Ms Tardrew by his words or actions. He offered her a choice between opening the phones or surrendering them to E-Crime and she chose to open them.
The prosecutor submitted that Constable Bakkelo was a truthful witness. His decision not to make comprehensive notes was taken as it was not his role to do so. He was a corroborating officer that was involved in the investigation and arrest of the defendant – he was not responsible for the investigation. Constable Filosi bore that responsibility. It was contended that Constable Bakkelo’s failure to record the interaction in the holding cell is not determinative of the issue before the Court, as the admissibility of any interview with Ms Tardrew is not the issue to be determined. It was submitted that whilst mistakes were made, Constable Bakkelo was not acting mala fides, rather, he presented honestly, making concessions when appropriate. It was pressed that I should find that the camera footage shows a police officer who is fair and reasonable with accused persons. In addition, his evidence is not fundamentally contradicted by Ms Tardrew’s, especially when she said she had decided to open both phones when standing on the roadside before her arrest. Ms Tardrew’s decision to open the mobile phones was made voluntarily.
Consideration
The two mobile phones owned by Ms Tardrew were legally seized during the search of her car. The issue to be determined here is whether the conduct of Constable Bakkelo, when he sought to have Ms Tardrew open the two phones, leads to the evidence from those phones being excluded. I have closely reviewed the evidence of Constable Bakkelo and Ms Tardrew. It is not disputed that Constable Bakkelo spoke to Ms Tardrew in a friendly, non-confrontational manner. The body-worn camera footage from the roadside interaction confirms this. I find that Constable Bakkelo’s manner was not threatening and was, in fact, respectful, if not a little over friendly.

I also find that during the roadside interactions between Constable Bakkelo and Ms Tardrew, she did not display signs of feeling threatened. I find that Ms Tardrew had a demeanour which allowed her to freely engage with both police officers. This is evinced by her offering information about each mobile phone without being asked any questions in relation thereto. There is no basis upon which to find that Constable Bakkelo interacted with Ms Tardrew in any way that was different whilst at the cells at the Elizabeth Police Station. Ms Tardrew did not give evidence that Constable Bakkelo’s presentation was any different at that time.
Constable Bakkelo gave his evidence in an open and credible way. He made no notes of his interactions with Ms Tardrew and, at times, his recollection was not consistent with hers. One such occasion was in relation to how many times he attended the holding cell to speak to Ms Tardrew. I find that any matters of inconsistency were not of consequence, and that Constable Bakkelo accepted where his recollection may have been dimmed not only by the passage of time, but by the nature of his work. I find that, on the important issues to be decided on the voir dire, Constable Bakkelo’s evidence can be accepted as honest, reliable and credible.
Constable Bakkelo’s evidence is supported by the audio-visual footage from his body-worn camera. The footage shows Ms Tardrew’s response to his presenting her with the two phones. She stood with her arms crossed in what could be described as a defensive manner as she engaged in conversation with him. Ms Tardrew listened as Constable Bakkelo explained that she would be hindering his investigation if she did not assist by opening the phones before saying she wanted to speak to a lawyer ‘…before I do’. Constable Bakkelo acknowledged that request before saying ‘I’ll let you know though …’ and went on to explain what would happen if she did not open the phones, namely that they would be sent to E- Crime for 12 to 24 months. Constable Bakkelo clarified that he was just trying to set out what would occur if the phones were not opened.
Ms Tardrew confirmed in her evidence that, at that point, she decided to open both phones and the camera footage showed her grabbing the HTC from Constable Bakkelo, opening it and giving it back to him. Having reviewed the camera footage and the oral testimony of Ms Tardrew, I cannot find that she felt threatened by Constable Bakkelo. On the contrary, it shows her looking frustrated with the interaction. Further, Ms Tardrew opened the HTC one minute and forty seconds after Constable Bakkelo first told her that the alternative was she could surrender her phones for 12 to 24 months.
I have carefully reviewed all of the evidence on the voir dire and the submissions of counsel. I find that Ms Tardrew made the decision at the roadside to open the phones, and this was as a result of being told that if she did not do so, the two phones would be sent to E-Crime and be lost to her for a considerable period of time. I do not accept that Ms Tardrew was motivated by a fear of being charged by police with hindering an investigation. Ms Tardrew did not ask Constable Bakkelo if she would be charged with an offence, or what he meant by ‘hindering an investigation’.
Ms Tardrew’s evidence was that although she did not know what offence she would be committing, she was motivated out of fear to open the phones. I do not accept that evidence. It is not consistent with the body-worn camera footage where Ms Tardrew is seen ‘bantering’ with Constable Bakkelo, nor is it consistent with the oral evidence of Constable Bakkelo and herself. I do not accept Ms Tardrew’s case that Constable Bakkelo behaved unlawfully in his interactions with her. It is clear that:
1.Constable Bakkelo gave Ms Tardrew a caution when he first started speaking to her as Constable Filosi searched her car. She advised him that she would not answer any questions;
2.Thereafter, Constable Bakkelo asked no questions about the drugs and/or cash found in her car, nor any questions in relation to her drug use or dealing;
3.The only discussion was about the two mobile phones, with Ms Tardrew volunteering the reason as to why she had two phones and how each could be opened;
4.Ms Tardrew stated that she wanted to speak to a lawyer before opening the phones;
5.Constable Bakkelo, after acknowledging her request, explained what would happen if she did not open the phones, that is, they would be sent to E-Crime;
6.Ms Tardrew decided to open the phones;
7The HTC phone was opened by Ms Tardrew, and before the Samsung was able to be opened by her, Constable Filosi interrupted their conversation.
I find that there was nothing unlawful in this interaction, and that Ms Tardrew’s right to silence was explained to her, as were the consequences of not opening the phones. I find that the statement made by Ms Tardrew about wanting to speak to a lawyer was made in the context of opening her phones. Constable Bakkelo acknowledged her wishes then explained that she would lose her phones to E-Crime for a lengthy period. That discussion continued until Ms Tardrew opened the HTC. Ms Tardrew’s response to Constable Bakkelo’s explanation of E-Crime does not cause Constable Bakkelo’s actions or words to be unlawful. I do not find that Ms Tardrew was importuned into providing police with access to her phones. This includes when she opened the Samsung in the holding cell. Although Constable Bakkelo can be criticised for not ensuring that the interaction in the cell was recorded, Ms Tardrew’s evidence established that she had already decided to open both phones when at the roadside.
There was evidence given of the further interaction between Constable Bakkelo and Ms Tardrew in the cell and the requests to obtain the phone number of a lawyer and Ms Tardrew’s partner. The evidence is not consistent between Ms Tardrew and Constable Bakkelo; however, I find that this is not an issue of consequence in the context of Ms Tardrew’s evidence that she was always going to open the Samsung phone and had made that decision at a much earlier stage in the investigation.
Decision
When Constable Bakkelo spoke to Ms Tardrew at the roadside, she had not yet been arrested, and, in fact, Constable Filosi can be seen on the audio-visual footage still conducting a search of Ms Tardrew’s car. After applying the findings in Middlin-Hannah, I find that there was no impropriety in Constable Bakkelo giving Ms Tardrew the option to provide him with access to her phones at the roadside. Ms Tardrew had been given a caution regarding her right not to answer questions and it was explained to her that access was required to search the phones for evidence relating to the potential commission of an indictable offence. Ms Tardrew understood this; she responded by saying that police ‘would find nothing on my phones’.[51]
[51] Exhibit VDP1.
I find that the body-worn camera footage clearly shows that Ms Tardrew understood that she had a genuine choice not to open her phones. I find that Constable Bakkelo did not direct Ms Tardrew to open the phones but gave her a fully informed choice whether to do so. I therefore find that the evidence from the two mobile phones should be admitted.
If my decision in relation to the opening of the phones is wrong, then the discretion to exclude the evidence must be considered. In Middlin-Hannah, both Kourakis CJ and Livesey J found that, despite the appellant’s privilege against self-incrimination having been compromised, there was no forensic unfairness, nor was there a basis on which to exclude the evidence of text messages found on the appellant’s phone. The appellant had not established that police would not have been able to gain access to the messages even without the PIN that he had provided when arrested. Justice Livesey dealt with the fairness discretion as follows:[52]
The unfairness discretion exists to ensure a fair trial for an accused, not to protect from unfairness in any general sense. If the act of the appellant telling police his passcode is to be regarded as a form of admission or confession, given in the absence of a proper caution, it is nevertheless hard to see why the proper exercise of the unfairness discretion requires the exclusion of the evidence. Police did not deliberately or otherwise, misstate the legal position. On the exercise of this discretion, what is significant is that the appellant knew the passcode and apparently, thereby exercised a measure of access and control over the phone’s contents. This was evidence from which it could be inferred that he was the author of the messages sent from that phone and had knowledge of the content of the messages received on that phone. However, it is difficult to regard this as involving material unfairness in circumstances where this did not add greatly to the inference that was, in any event, available from the fact that when asked to do so the appellant produced the phone to police.
[52] Middlin-Hannah at [152].
His Honour concluded that where the police had obtained evidence by being given the PIN which they could have obtained later by forwarding the phone to E-Crime, it was hard to see how there was any material unfairness in connection with using the evidence that had been obtained from the phone.[53]
[53] Ibid at [154].
Justice Livesey also considered the public policy discretion, as set out in Bunning v Cross,[54] where he noted:
…it is well-recognised that the “principle considerations of high public policy” which favour exclusion of evidence procured by unlawful conduct on the part of investigating police transcend any question of unfairness to the particular accused. Whilst Sergeant Napper’s ignorance of his own legal authority is troubling, there is no suggestion that he was deliberately exploiting what he knew to be an absence of power when he threatened to seize the appellant’s phone and asked for the passcode. I doubt whether it can be said that Sergeant Napper misled the appellant as it turned out, and I have found, there was power under the Summary Offences Act to seize the phone and unlock it, …’.[55]
[54] (1978) 141 CLR 54 at 74-75.
[55] Ibid at [156].
I have found that Constable Bakkelo did not act unlawfully, with illegality or serious impropriety. There was no evidence presented to the Court on the voir dire that any failure to caution Ms Tardrew or any other actions taken by Constable Bakkelo affected the weight or cogency of the information located on the two mobile phones. As in Middlin-Hannah, any failure to caution Ms Tardrew did not provide any particular advantage to police and they were entitled to reasonably suspect that the phones would contain evidence related to the commission of an offence (within the meaning of s 68 of the Summary Offences Act).
If there was an error of judgment on the part of Constable Bakkelo in his dealings with Ms Tardrew, I find that this is outweighed by the important consideration that admissible evidence of a serious criminal wrongdoing should be admitted. In considering the discretion to allow the evidence to be admitted, I take account of the offence with which Ms Tardrew is charged, namely, trafficking in a controlled drug. That is a major indictable offence with a maximum penalty of $50,000.00 or imprisonment for 10 years, or both. The trafficking of methylamphetamine perpetuates the serious harm that illegal drugs, of any kind, cause in our community. There is a strong public interest in preventing such harm.
I find that there was no intentional or reckless disregard of Ms Tardrew’s rights in the manner in which she was spoken to, and how the matters were explained regarding the opening of her phones. She was, at all times, treated with respect. My consideration of the test in Bunning v Cross, would lead me to exercise my inherent discretion to admit the evidence found on the phones.
Discreditable Conduct Notice - Challenge
As a result of my finding in relation to the admission of the evidence found on the two mobile phones, I must now consider Ms Tardrew’s application to exclude the use of the evidence of the $465.00 cash found in the handbag in her car and the evidence from the mobile phones for a propensity purpose on the basis that the foundation for drawing any inference about propensity has not been established.
Ms Tardrew’s Case
It was submitted by defence counsel that the fact that there were encrypted messaging applications found on Ms Tardrew’s phones cannot be used as evidence to demonstrate that she has a propensity to sell drugs, or that she was more likely to be in possession of the methylamphetamine with an intention to sell it. Defence counsel submitted that there was no evidence that encrypted messaging applications are an item exclusively used by persons who deal drugs.
In relation to the $465.00 cash, Ms Tardrew’s case is simply that, in current times, that amount of money is inconsequential, and less than a regular Centrelink payment. It was submitted that such a small sum of money cannot prove the commission of trafficking, or a propensity to sell drugs as part of the business of trafficking.
The Prosecution Case
The prosecution confirmed that they seek to use the two encrypted messaging applications in combination with the $465.00 cash for a propensity purpose. These monies are described as ‘… not insignificant… in denominations of $50.00 and $100.00 as seen on the video footage.’[56]
[56] T174.37-T175.10.
The prosecution rely upon the affidavits of DBS Dalziel of 19 January 2020 (‘the first affidavit’) and 13 October 2020 (‘the second affidavit’), as the evidence she will give at trial to support the case for use of the evidence for a propensity purpose. They submit that this is a use permissible under s 34P(2) of the Evidence Act 1929 (SA) (‘the Evidence Act’). By their discreditable conduct notice, they seek to adduce the evidence to demonstrate that:
-Ms Tardrew was in the business of dealing drugs;
-She had a particular propensity to sell drugs as part of that business; and
-Her propensity made it more likely that she:
-possessed the drug;
-knew the nature of the drug; and
-intended to sell the drug.
-
-
Legal Principles
The prosecution’s application to lead discreditable conduct evidence is brought pursuant to s 34P(2) of the Evidence Act. Sections 34P(1) and (2) read as follows:
34P—Evidence of discreditable conduct
(1) In the trial of a charge of an offence, evidence tending to suggest that a defendant has engaged in discreditable conduct, whether or not constituting an offence, other than conduct constituting the offence (discreditable conduct evidence)—
(a)     cannot be used to suggest that the defendant is more likely to have committed the offence because he or she has engaged in discreditable conduct; and
(b)     is inadmissible for that purpose (impermissible use); and
(c)     subject to subsection (2), is inadmissible for any other purpose.
(2) Discreditable conduct evidence may be admitted for a use (the permissible use) other than the impermissible use if, and only if—
(a)     the judge is satisfied that the probative value of the evidence admitted for a permissible use substantially outweighs any prejudicial effect it may have on the defendant; and
(b)     in the case of evidence admitted for a permissible use that relies on a particular propensity or disposition of the defendant as circumstantial evidence of a fact in issue—the evidence has strong probative value having regard to the particular issue or issues arising at trial.
In considering whether the evidence of the $465.00 cash and the encrypted applications can be used in a manner as sought by the prosecution, I must satisfy myself of the two tests set out in s 34P(2), namely:
-1) that the probative value of the evidence substantially outweighs any prejudicial effect: and
-2) that the evidence has strong probative value regarding Ms Tardrew’s propensity to sell drugs as part of the business of dealing drugs.
By s 34P(1) discreditable conduct evidence is evidence that tends to suggest that an accused has engaged in discreditable conduct in the past, not that they may engage in such conduct in the future.[57] However, in many cases, an item of evidence, such as the encrypted applications in this case, may have been used in the past but may also have the potential to be used in the future. Despite this, the piece of evidence can have strong probative value.
[57] R v Soteriou [2013] SASCFC 114 at [14].
In determining if the disputed evidence has strong probative value, the totality of the evidence to be led must be considered.[58] Without doing so, the purpose of the disputed evidence cannot be determined. The connection between the factual background of the circumstances in this case and the disputed evidence raised in the discreditable conduct notice must be identified.
[58] BNM v The Queen [2020] SASCFC 10 per Doyle J.
In their written submissions, the prosecution relied upon the interpretation of the terms ‘disposition’ and ‘propensity’ as set out by Vanstone J in R v Soteriou:
It can be seen that the definitions of both words are fairly undemanding. They include inclination or tendency. The words can apply to criminal propensity or disposition, but need not. I consider that if the jury were minded to draw the inferences from the text messages and notebooks suggested by the prosecution, then inevitably it would have reached the view that the appellant had recently and repeatedly dealt in drugs, that he was in that business, and, it followed, that the appellant had a propensity or disposition to deal in drugs. In my view the step from the first and second conclusions to the third one is a short one.[59]
[59] [2013] SASCFC 114 at [16].
The Evidence
Ms Tardrew was found with a large amount (55.6 grams) of substance containing methylamphetamine in the footwell of her car after police had stopped her due to her erratic driving. This substance was in two separate plastic bags and was wrapped together in birthday paper. When pulled over by the police, Ms Tardrew presented as being nervous and shaking, and gave answers to questions regarding her movements and circumstances that were not consistent with known facts. [60]
[60] R v Tardrew [2021] SADC 7.
On searching Ms Tardrew’s car, in addition to the drugs, police found the two mobile phones $465.00 cash in a handbag and an ice pipe. A search of Ms Tardrew’s home was conducted and four ice pipes, an ice pipe bong and a small press seal bag with less than a gram of methylamphetamine were located. The cash found in Ms Tardrew’s car was shown on Constable Filosi’s body-worn camera footage.[61] It largely consisted of $100.00 and $50.00 notes. No other evidence was before the Court. The prosecution relies very heavily on the inferences they seek to draw from the evidence of the cash and the two encrypted messaging applications as contained in the affidavits of DBS Dalziel of 19 January 2020 and 13 October 2020.
[61] Exhibit VDP1.
DBS Dalziel is a senior police officer who has worked in the Drug and Organised Crime Task Force of SAPOL since August 2013. She has significant experience in all aspects of policing relating to illicit drugs. In the first affidavit, DBS Dalziel set out how methylamphetamine is sold and priced, with a gram selling at between $200.00 and $300.00 in South Australia (at that point in time). She set out a list of indicators that may be used to determine if a person is actively drug dealing. The prosecution relied on two of those eight indicators, namely that the accused possessed:
·large amounts of cash; and
·an unusually large number of mobile phone services.
In the first affidavit, DBS Dalziel also stated that:
… it is common for drug traffickers to use encrypted communications for the purpose of conducting illicit communications. Smart phone applications are possibly the simplest and most accessible example of this. Organised crime groups and street level dealers alike commonly use smart phone applications for aspects of their illicit business on the belief that law enforcement access is restricted.

She went on to note that the application ‘Signal’ had become increasingly popular in recent times, although ‘DuckDuckGo’ was an application she had not previously come across. Her research found that the latter application was an internet browser with a higher level of encryption than the former.
In the second affidavit, DBS Dalziel expanded on how methylamphetamine is commonly sold, namely in $50.00 and $100.00 denominations. She stated that it is common to find large amounts of $50.00 and $20.00 notes on the person of, or in the residences of those who have been convicted of trafficking.
Decision
I find that the evidence of the $465.00 cash and the two encrypted applications is not evidence that Ms Tardrew had engaged in discreditable conduct, (drug dealing) in the past.
I find that $465.00 was not an unusually large amount of cash to have in a purse in March 2019. In addition, the cash that was located was shown on the camera footage to be primarily in denominations of $100.00 and $50.00 notes. This is not consistent with DBS Dalziel’s evidence that it is common to find large amounts of $50.00 and $20.00 notes on drug dealers.
In relation to the mobile phones, no evidence was led of messages contained therein that Ms Tardrew had been trafficking. Contrary to the evidence of DBS Dalziel, Ms Tardrew was not found with an ‘unusually large number of phone services’. She was found in possession of only two mobile phones of which only one, the Samsung, was connected to a telecommunication service through a SIM card. I accept Ms Tardrew’s explanation as to why she had two phones, namely that she had not yet transferred her contacts and photos from the older phone (the HTC) to the Samsung. That circumstance is very common for a person with a new phone. Ms Tardrew was shown on the body-worn camera footage explaining that circumstance twice to Constable Bakkelo. She appeared quite genuine when volunteering that information. He accepted it; so, do I.
In relation to the encrypted applications on the two phones, DBS Dalziel was not aware if drug dealers used the application ‘DuckDuckGo’. She had not heard of it before this case. The encrypted application ‘Signal’ was, however, known to DBS Dalziel as being used by drug dealers.
The use of the encrypted messaging applications on the phones, without evidence of any messages to establish drug dealing, is similar to the factual situation in R v Soteriou where empty plastic bags were found in the defendant’s possession. Justice Vanstone found that the fact that the defendant still had possession of the bags indicated that they had not been used in the course of a drug trade. In the present case, there has been no evidence presented to me that either phone had been used in the business of dealing drugs, despite the phones being sent to E-Crime for investigation.
I find that neither the $465.00 cash nor the two mobile phones, separately or together, fall within the ambit of s 34P(1) of the Evidence Act, and cannot be used pursuant to that section. I now turn to consider whether s 34P(2)(b) has any application. The prosecution identified the $465.00 cash and the encrypted messaging applications on the two mobile phones when considered together as propensity evidence. Defence counsel did not agree. It is therefore necessary that the prosecution establish that the evidence has strong probative value pursuant to s 34P(2)(b), having regard to the issues at trial.
The only perceivable issue at trial will be the reason as to why Ms Tardrew was in possession of the drugs found in her car. Ms Tardrew exercised her right to silence and did not participate in an interview with police. When speaking to Constable Bakkelo at the roadside regarding the two mobile phones, she indicated that the police would find nothing of interest on them. Apart from the quantity of drugs found in Ms Tardrew’s possession, the only evidence of drug trafficking sought to be admitted by the prosecution is the $465.00 cash and the encrypted messaging applications.
For the reasons I have set out in relation s 34P(1), I do not find that these two pieces of evidence, when considered together, are strongly probative of the issue to be tried in this case. There has not been sufficient other evidence presented for me to find that having $465.00 cash in a purse inside a handbag in 2019 can lead to an inference of drug trafficking. There had been no attempt to hide the money or purse. The cash was not hidden in the glove box, under a seat or otherwise. It was simply sitting in a handbag on the front seat of the car. Similarly, the evidence of only one telephone service between two phones is not indicia of drug dealing. In the current day, possessing two phones cannot be described as an ‘unusually large number of phone services’. I find that the encrypted messaging applications, one of which DBS Dalziel had not heard of, without evidence of any text messages linked to the sale of drugs, does not have a strong probative value. Encrypted search and messaging applications are now used for many reasons, including attempts to avoid receiving spam calls and messages.
None of the other usual indicia of drug trafficking was found on the search of Ms Tardrew’s car or home. I am not satisfied that the evidence of the $465.00 cash located in Ms Tardrew’s purse, or the encrypted messaging applications on the two mobile phones found in her handbag, when considered in isolation or together, are admissible as evidence of Ms Tardrew’s purported propensity to engage in the business of trafficking illicit substances. I find that the cumulative effect of those two pieces of evidence does not have a strong probative value having regard to the issues to be determined at trial and cannot be admitted as propensity evidence. The prosecution cannot adduce evidence of discreditable conduct of Ms Tardrew in this respect.