R v Terry Peter Lehmann - [2024] SADC 96

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v TERRY PETER LEHMANN
[2024] SADC 96
Reasons for Ruling of her Honour Judge Sutcliffe
8 August 2024
EVIDENCE - GENERAL PRINCIPLES - VOIR DIRE
CRIMINAL LAW - PROCEDURE - WARRANTS, SEARCH, SEIZURE AND RECORD OF INTERVIEW
Rule 39 application to exclude evidence of the seizure of the accused's Samsung mobile phone and the accused's record of interview.
Held: application refused.
Crimes Act 1914 (Cth) ss 1C, 3E, 3G, 3H, 3P, 3Z, 3ZS, 3ZR, 23F, 23G and 23S; Summary Offences Act 1953 (SA) ss 74D, 79A and 81; Police Act 1998 (SA) ss 59 and 61, referred to.
Ghamrawi v The Queen [2019] SASCFC 108; R v Nguyen (2013) 117 SASR 432; Smethurst v Commissioner of Police [2020] HCA 14; The State of South Australia v Crossley [2020] SASCFC 128; R v Moham, Chaarani & Moukhaiber (Ruling 2) [2019] VSC 72; Bunning v Cross (1978) 141 CLR 54; Thomas v The King [2024] SASCA 51; Young v The King [2024] SASCA 47; R v Golija [2017] SASCFC 61; Middlin-Hannah v the Queen [2020] SASCFC 112; Police v Grozev [2006] SASC 353; Lindsay v The King [2022] SASCA 138, applied.

R v TERRY PETER LEHMANN
[2024] SADC 96

Introduction

This is an application by the accused for the exclusion of evidence at his trial.
The accused seeks an order excluding evidence obtained as a result of the seizure of a Samsung mobile phone, and an order that the accused’s record of interview be excluded as evidence. Other orders are sought that are not dealt with in this ruling, as submissions on those grounds have not yet been heard.
The grounds of the application, as supplemented by written submissions filed on 23 May 2023 are:
That the seizure of the phone/contents of the phone be excluded as evidence to be led before the jury:
1.Federal Agent Brown used unnecessary force to seize the phone, amounting to an unlawful assault in seizing the phone contrary to s3G of the Crimes Act 1914 (Cth) (“the Act”).
2.Agent Brown failed to advise the applicant in a timely manner that he had a warrant to search the premises and seize the items, contrary to s3H and s3Z of the Act.
3.Brown failed to specifically advise the applicant that he was seizing the phone pursuant to a warrant, contrary to s3H and 3Z of the Act.
4.Agent Brown failed to provide the applicant with his rights pursuant to s79A of the Summary Offences Act 1953 (SA) or sections 23F and 23G of the Act. prior to being questioned, including before being asked a question regarding his passcode.
The exclusion of the record of interview between Agent Brown and the applicant is sought on the grounds that Agent Brown failed to advise the applicant of his rights in a timely manner, and that the conduct of police rendered the questioning unfair.
Affidavits were tendered, including affidavits of Federal Agent Brown, Detective Brevet Sergeant Paula Dunworth, Detective Brevet Sergeant Katie Dalton and Senior Constable Soltes. Those witnesses gave evidence as did the accused. A video recording of the attendance at the accused’s premises was tendered.
It was an agreed fact that the search of the accused’s premises occurred while the accused was seated at a table in the rear of the premises and that the accused was not present to observe any stage of the search.
The facts regarding the chronology of events in this matter were not substantially in dispute. I set out the events I have found established in chronological order, and deal with the relevant disputed factual and legal issues as they arise in the context of the chronology.
On a date after 14 November 2021 and before 30 November 2021, Agent Brown received a report from the Child Protection Triage Unit from the Australian Centre to Counter Child Exploitation, containing information from the Virginia Beach Police Department in the United States of America. The report recorded a reported chat on the KIK application, between a person and a covert police officer posing as 14 year old child reported to occur on 22 August 2021, in which the person sent one image of a male person holding a flaccid penis, and three images of a male person with an erect penis and a video of a male person masturbating. The report nominated the applicant as the suspected person who sent the images and video. The report was undated, and Agent Brown was unsure when he received it. The report detailed a search conducted on 14 November 2021 regarding the results of an IPND check for a phone number and so must have been provided to Federal Agent Brown on or after 14 November 2021.
On 30 November 2021 Agent Brown and other police officers attached to the Joint Anti Child Exploitation Team (JACET), being police officers from South Australia police and Federal Agents from the Australian Federal Police, including digital evidence experts, attended the premises where the accused lived with his parents, on 30 November 2021 to execute a warrant issued under s3E of the Act. That warrant, amongst other things, authorised the entry and search of the accused’s premises and to seize evidentiary material. Agent Brown also had available to him a s3LA order that relevantly required the accused to provide passwords, passcodes, and PIN codes to mobile telephones to allow the data on a phone to be accessed.
Agent Brown is a Federal Agent who has performed that role since 2017. He joined the Australian Federal Police in 2015. In his current role, Agent Brown predominately investigates major Commonwealth offences. At the time of his attendance at the accused’s premises, he had attended at premises with a search warrant hundreds of times. One of the objectives of the search was to locate the phone used in connection with the KIK communications with the covert operative. Agent Brown knew that the phone they were looking for was the accused’s phone and that the communications in question were made from the premises the subject of the warrant. Agent Brown also wanted to find any items of clothing that were identifiable in the communications with the undercover operative.
Agent Brown, Detective Brevet Sergeant Dalton and Detective Brevet Sergeant Dunworth proceeded to the front door. Detective Brevet Sergeant Dunworth held and operated the camera. Other officers moved to the right side of the house.
Agent Brown walked up wooden steps leading to the front door, and knocked on the door, then with his foot, he moved a pair of shoes lying on the wooden decking in front of the door, to the side of the door. Agent Brown’s usual practice is to try the screen door handle and he believed he did this on this occasion.
A dog inside the house was barking. The accused opened a door leaving the screen door closed between him and the officers. The accused knew on opening the door that the people at the door were police officers. Detective Brevet Sergeant Dunworth and Detective Brevet Sergeant Dalton were wearing SAPOL vests and Agent Brown was wearing a t-shirt with the acronym ‘AFP’ on the front.
Agent Brown introduced himself as “Gordon from the police”. The accused said he was Terry. Agent Brown pushed the screen door handle down to open the door and said that they needed to have a chat with the accused. The accused asked what it was about, and Agent Brown asked him to open the door. The accused asked why the AFP were present. Agent Brown said he needed to talk to him. Detective Brevet Sergeant Dunworth then introduced herself by her first name and said she was from SAPOL. Agent Brown said, “Open the door”. The accused said, “No worries, I’ll come out the other side there cos’ this one doesn’t open, I’ll come around the back.” There was some brief conversation and the accused then said, “Yeah I’ll come right around this side okay guys? Right around…”.
Section 3ZS of the Act provides that before effecting entry to premises under a warrant, a constable must announce that he or she is authorised to enter the premises and to give any person at the premises an opportunity to allow entry.
At the time that Agent Brown, who is a constable for the purposes of s3ZS, was standing at the front door, he was on the premises the subject of the warrant, but was not at that time, effecting entry pursuant to a warrant.
Agent Brown gave evidence that he did not advise the accused that he had a warrant at the front door, because he wanted to gain entry as soon as he could. He did not mention the warrant when the accused asked about the reason for the police attendance, because the search could have been obstructed. He denied deliberately withholding information about the warrant. He said he wanted to chat to the accused about internet usage that formed the basis of the warrant. The evidence that Agent Brown did not deliberately withhold information about the warrant was implausible and inconsistent with his evidence that he did not advise the accused he had a warrant because he wanted to gain entry promptly, and that he considered that the accused needed to see the warrant, which he was not able to see through a closed screen door.
Agent Brown said it was a conversation that he considered needed to occur face to face. Agent Brown said had the door been opened, he would have had that conversation, and explained that they had the warrant. He did not consider that at the time he was standing at the front door, that he was on the premises.
Agent Brown’s evidence is consistent with having made a deliberate decision not to advise the accused about the warrant at a time entry was obstructed by the screen door, due to a concern that if the door remained closed, access would not be readily gained if force was needed once the reasons for attendance were explained. I do not consider that Agent Brown withheld the information that he had a warrant at the front door because he was intending to enter the premises without fulfilling the obligations under s3ZS.
The accused gave evidence, which I accept, that he was expecting to meet the police at glass doors that led to a back room, at the rear of the house. That evidence is consistent with the accused having emphasised at the front door that he would come right around the side, and that later, at the time the officers entered the premises, he was moving towards the exit of the rear room of the house. The accused gave evidence that the front screen door had not worked for five years.
Agent Brown gave evidence that the accused directed him to go round to the rear of the premises. Detective Brevet Sergeant Dunworth gave evidence that the accused invited them to come to the back. I consider that they both held an honest misunderstanding about what the accused had said. There is no evidence that Agent Brown knew at this time, that there was a secured room at the rear of the house that sat at ground level.
Agent Brown gave evidence that the inability to gain entry at the front door, and the request to make their way around to the rear of the premises, raised his concern about the potential loss, destruction or concealment of evidence that might be located on any mobile or electronic device, and he felt some urgency in obtaining the accused’s mobile phone to prevent that happening. In cross examination he said the accused appeared to be using a stalling tactic by not letting the officers through the front door. Agent Brown agreed the accused was polite but said he was evasive and seemed a little ‘jumpy’.
Aspects of Agent Brown’s evidence involved a reconstruction of his motivation and thinking that undermined his credibility, which I detail later in these reasons, but I accept Agent Brown’s evidence that the interactions he had with the accused at the front door raised his concern that evidence might be destroyed. A criticism was raised that Agent Brown’s sense of urgency at this stage was first raised by him in an affidavit provided shortly before the hearing. I place no weight on the fact that earlier statements did not address this topic, which might be explained by Agent Brown’s attention only being directed to that issue before the hearing.
Agent Brown was cross examined about the timeline of events preceding the attendance at the premises, but I do not consider that the gap between the alleged date of the offending and the execution of the search warrant was material. From Agent Brown’s perspective, the risk of destruction only became a live one once the accused was aware that the police were present and wished to speak to him.
The concern about the risk of destruction was consistent with Agent Brown’s subsequent conduct. Agent Brown moved promptly from the front door, jumping down off the decking. Agent Brown, and Detective Brevet Sergeant Dunworth then walked along the front of the house, and turned left down the side of the house that was covered by a carport or garage. Agent Brown opened and passed through a glass door that led to a fully enclosed room at the rear and side of the main portion of the house, that sat at ground level. It was similar in appearance to a closed in veranda but much larger. I refer to this area as the ‘rear room’. It was a room that could be locked. A long wooden ramp ran from what may have been the back door of the original house to the ground level of the rear room.
As Agent Brown passed through the glass door and entered the rear room, he expressed his concern about a dog.
Entry into the premises
Section 3ZS(2)(b) provides that compliance with the requirements in s3ZS to announce the authorisation to enter premises and give the person the opportunity to allow entry, is not required if the constable believes on reasonable grounds that immediate entry to the premises is required to ensure that the effective execution of the warrant or the arrest is not frustrated.
By entering the glass doors, Agent Brown effected entry to the premises. There was no dispute about this. Agent Brown gave contradictory evidence as to his authority to enter the rear room. Agent Brown said he did not consider this portion of the house to be part of the premises, and that s3ZS did not apply at the time of his entry. He later gave evidence that the exception in s3ZS (2)(b) applied, and entry to the premises was required to ensure the effective execution of the warrant.
Agent Brown also gave evidence that he was able to be in the rear room which did not appear to be part of the premises, because he was in possession of the search warrant. He gave evidence that a warrant provided the unfettered right to walk into nominated premises and to use reasonable force to do so. He said he would have entered the main body of the house uninvited, had the accused not emerged from the house and entered the rear room.
Agent Brown frequently explained that he had not entered the premises when he entered the rear room. He drew a distinction between being present in the rear room from entry to the main part of the house.
Initially in cross examination Agent Brown displayed a lack of knowledge regarding the obligations imposed under s3ZS of the Act.
During questions on the topic regarding Agent Brown’s conduct at the front door, Agent Brown was asked,
QNo, the question was; you don’t need – do you need to tell him about the warrant before you come in.
ANo.
His evidence on this topic reflected an improved understanding after the hearing adjourned on the Thursday and resumed the following Monday. Agent Brown agreed that during the adjournment, he had asked the instructing solicitor for the prosecution, for confirmation about the section that applied to the entry requirements, which was the subject of his cross examination.
When the hearing resumed on the Monday, Agent Brown gave evidence that he had turned his mind to his obligations under s3ZS to announce his authority to enter and did not do so before seizing the phone, because he was not on the premises, and because of the concern about the destruction of evidence. He said he intended to comply with his obligations at the back door to the premises, which I infer referred to the door to the main part of the premises. That evidence is inconsistent with his evidence that he would have proceeded into the main part of the house uninvited if he had not intercepted the accused in the rear room.
Later in his evidence regarding the seizure of the mobile phone, Agent Brown appeared to contradict his evidence that he was not on the premises, saying he was exercising a power under the warrant in attempting to take the phone from the accused. Agent Brown was not asked to explain why he thought the warrant provided the power to do this, given his mistaken understanding that he was not on the premises.
The change in Agent Brown’s evidence to include an assertion that he turned his mind to his obligations under s3ZS and the exception, was an obvious re-construction of events and undermined his credibility and reliability on that topic, and generally.
I formed the view that Agent Brown’s actions, and his confused and limited understanding of the scope of his powers and obligations, was consistent with him having acted on his view of what he should be entitled to do, in the hope or expectation that it was within the limits of the law. His actions were not based on a good working knowledge of his powers.
Agent Brown’s actions in entering the premises without informing the accused why he was there and the cascading consequences that followed, highlight the importance of approaching the issues in this matter bearing in mind the proper balance to be struck between individual liberty and privacy and the enforcement of the criminal law, as discussed in Ghamrawi v The Queen[1], where the Chief Justice said:[2]
Police officers should be guided by a good working knowledge of those powers and their limits. They should not act on their subjective view of what they ought to be free to do and then hope, after the event, that they have observed the limits of the law.
[1] [2019] SASCFC 108.
[2] [2019] SASCFC 108 at [2].
I do not consider that Agent Brown turned his mind to his obligations under s3ZS prior to or when moving through the glass doors into the rear room. To the extent that Agent Brown thought the accused invited him to come around the back, that did not remove his obligations under s3ZS, given that Agent Brown was entering under the authority of the warrant.
I turn to consider whether Agent Brown had reasonable grounds to believe that his conduct, involving immediate entry to the premises, was required to ensure that the effective execution of the warrant or the arrest was not frustrated.
The distinction between a suspicion and belief was discussed in R v Nguyen (2013) 117 SASR 432. The court said at [21]:
A suspicion that a fact exists is less certain than a belief in the existence of that fact. A belief is held on information which is accepted as reliable and implies a reasonable satisfaction that the fact is at least more likely to be true than any other alternative fact or facts. On the other hand, a suspicion that a fact exists, in the context of an investigation of the truth of that fact, is a working hypothesis for which there is some supporting material. There must be a rational connection between the supporting material and the suspicion. Mere curiosity, speculation or “idle wondering” about the existence of the fact is not the same as a suspicion that it exists.
In evaluating what is ‘reasonable’, the context of the statutory power and the civil liberties abrogated by its exercise are to be considered.[3]
[3] Ibid at [22], citing R v Davidson (1991) 54 SASR 580, 584.
The presence of shoes immediately in front of the front door provided reasonable grounds to suspect that the accused’s explanation about the inability to open to the door was false, and to suspect that the accused was attempting to delay any entry.

It does not follow that this provided grounds to believe that the accused was trying to delay entry to destroy evidence or otherwise frustrate the execution of a warrant. The accused said he would come out from the back. The accused sounded calm and cooperative. His questions indicated he did not know why police were at the door.
No information had been provided to the accused about the reasons for the presence of police. Agent Brown was aware that the investigation related to communications said to have occurred between the accused and an undercover operative posing as a child, information that would not have been conveyed to the accused prior to the police attendance. Agent Brown had no reason to consider that the accused might suspect that he was a target of an investigation into those communications.
There were other equally open alternative explanations for the accused’s response at the front door. It was possible that the door could not be opened. It was possible that he did not want others in that part of the house to become aware that police were present and wished to speak to him. Later in interview, the accused said he was concerned about the presence of his partner, who was the subject of an intervention order imposed against the accused, for her protection. Agent Brown had information available to him that an intervention order was in place for her benefit, but there is no evidence he was aware of its terms.
The information available to Agent Brown did not provide grounds for a reasonable belief that immediate entry was required to avoid the destruction of evidence.
I am unable to conclude that Agent Brown deliberately flouted his obligations under s3ZS. I consider that Agent Brown’s failure to stop and wait at the glass door to speak to the accused was due to a combination of his misapprehension that he had been invited to come around the back, and his genuine concern about the destruction of evidence. It is possible that Agent Brown mistakenly believed the rear room did not form part of the premises, but I note his evidence was that he would have continued to move into the main part of the house in any event.
As Agent Brown proceeded through the rear room, the accused emerged into the room from a door and started to walk down the ramp, holding a mobile phone in his right hand, as Agent Brown walked up the ramp towards him.
Detective Brevet Sergeant Dunworth gave evidence that she felt at this stage that the accused was becoming volatile and aggressive, and there was a likelihood he would become aggressive. Subtle clues and her experience in policing gave her this impression, being that the accused puffed himself up with his arms out to his side and his shoulders were raised. I accept Detective Brevet Sergeant Dunworth’s evidence on this topic, which was logical and consistent with the accused’s demeanour on the video.
Detective Brevet Sergeant Dunworth informed the accused they needed to come inside, and asked who else was inside.
The following events unfolded very quickly. Agent Brown stood in front of the accused and said, “I’ll take your phone, thank you.” Agent Brown moved to take the phone and at the same time, the accused said, “no you won’t” and transferred the phone to his left hand, turning to his left as he did so, away from Agent Brown.
The accused gave evidence that at the time Agent Brown said, “I’ll take your phone”, Agent Brown reached and grabbed his right arm that was holding the phone. In cross examination the accused agreed that as he moved the phone from his right to his left hand, Agent Brown grabbed his right arm. I find that the grabbing of the accused’s arm happened almost simultaneously as Agent Brown said he would take the phone, and as the accused started to move to transfer the phone from his right arm to his left. This is consistent with what is shown on the video. I find that the accused had not made any physical indication of throwing the phone prior to this occurring.
The accused gave evidence that he intended to get the phone away from Agent Brown because he was being attacked. He was going to toss the phone away to remove himself from danger. He knew the phone was the centre of their attention. He was going to underarm toss it towards a couch.
In cross examination the accused agreed he moved the phone to his left hand to make it harder for Agent Brown to get his phone and he did not want Agent Brown, or anybody, to have his phone.
The accused’s reaction to Agent Brown attempting to take the phone occurred in circumstances where the accused had not been informed about the existence of the warrant or the purpose of Agent Brown’s attendance, and from his perspective, police officers had walked into the premises uninvited. The accused was not provided the opportunity to provide the phone in the knowledge that Agent Brown had the authority to be present and the power to take and examine it.
After the phone had been transferred to the accused’s left hand, Agent Brown, while holding the accused’s right arm said, “Yes I will take your phone”.
What occurs next can be heard but not seen on the video. The accused called out “hey hey hey” repeatedly as Agent Brown yelled for him to drop his phone. Detective Brevet Sergeant Dunworth told the accused to get on the floor and Agent Brown told the accused to drop the phone.
The accused gave evidence that he underarm tossed the phone towards the couch. In cross examination he said he did this to get it as far away from him as possible, because they were like “hungry dogs and he had a meaty phone in his hand”, and he was scared. The accused denied throwing the phone, drawing a distinction between an underarm toss and throwing. When it was put to the accused that he did not want the police to have his phone, he responded that he did not want to be attacked.
There was some yelling and the accused said, “My phone’s over there” and asked why they had jumped on him. The accused gave evidence, that I accept, that at the time he was taken to the ground, Agent Brown had hold of his right arm and he was not able to move it.
The phone was located under a couch and its case was found about 3 to 4 metres away from where the accused was being held.
The accused said in evidence if he had been told police had a warrant to search his premises he would have complied with the warrant and or directions.
Agent Brown gave evidence that when he entered the rear room and saw the accused, there was urgency, as he could see the phone in his right hand, and he wanted to preserve it. He did not know that it was a Samsung phone. There was a risk the accused could throw it on the ground, and he wanted to prevent him from throwing it. Agent Brown was unable to explain what gave him the impression the accused was going to throw the phone at a time before he went to reach for the phone. The effect of his evidence was that the urgency arose because he saw it, and he wanted to preserve it.
Agent Brown said he had the right to take the phone as it was listed in the warrant, but he was not executing the warrant at the time, because he was not on the premises. He said he was aware of the requirements under s3H of the Act.
The warrant authorised Agent Brown to seize a phone that satisfied the three conditions listed on the warrant. There is no dispute that there was a basis to examine the phone, to determine if it satisfied the second and third conditions, namely that the phone related to the subject of the investigation and there were reasonable grounds to suspect it would afford evidence as to the commission of the offence the subject of the investigation.
Agent Brown said he had the right to use force to take the phone because of the way the accused acted after he went to grab the phone, as he resisted and thrashed his arms around. Obviously enough that justification relied on what occurred immediately after or as he used force.
Agent Brown considered his actions were reasonable. He said he did not advise the accused he had a warrant to take the phone, because it was a short time between entering and seeing the phone, and he wanted to preserve it immediately. The circumstances did not permit an opportunity to provide a copy of the warrant to the accused. Agent Brown did not explain how he thought evidence on the phone might be damaged if the phone was thrown.
The accused was instructed to put his arms behind his back and advised by Detective Brevet Sergeant Dunworth that he was under arrest for hindering police. He was handcuffed by Agent Brown, Detective Brevet Sergeant Dunworth, and another Federal Agent who assisted.
Detective Brevet Sergeant Dunworth gave evidence that the accused threw his arms up after Agent Brown asked for his phone and it was clear that he was trying to throw it. Detective Brevet Sergeant Dunworth believed he was trying to destroy it. I am satisfied, following a close review of the video, and a consideration of the evidence of Agent Brown and the accused, that when the accused transferred the phone from his right to his left hand, he raised his right arm slightly as he turned to his left, a movement consistent with trying to free himself from Agent Brown’s grip and he transferred the phone to his left hand which had come up to meet his right hand, at around head height. The action was not consistent with an intention to throw the phone but was consistent with an intention to move the phone away from Agent Brown.
I consider that this action was interpreted by the officers as an attempt to throw the phone. A struggle then followed.
Detective Brevet Sergeant Dunworth grabbed the accused. I accept her evidence that because he was refusing to let Agent Brown take the phone, she thought he was going to destroy it. She arrested the accused for hindering Agent Brown.
S3H of the Act requires that a copy of the warrant be made available to the occupier of a premises to whom the warrant relates or to another person who apparently represents the occupier at the premises. A person searched under a warrant in relation to premises must be shown a copy of the warrant and the executing officer must identify himself or herself to the person at the premises or the person being searched.
While s3H does not require that its terms be complied with prior to the execution of the warrant, I bear in mind the purpose of s3H as explained in Smethurst v Commissioner of Police[4]:
“The protective purpose to which these provisions are directed is achieved by ensuring that each of the issuing officer, the officer executing the warrant and the persons affected by the warrant understand what is the object of the search and the limits to it. The issuing officer obviously needs to appreciate the boundaries of the authorisation which is to be given. The executing officer and those affected by the warrant must likewise understand the object of the search and comprehend the limits to the scope of the search which has been authorised. In each case this can only be achieved by the nature of the offence the object of the warrant being stated on the face of the warrant, in a way which is both intelligible and sufficient to convey what those concerned with or affected by the warrant need to understand.”
[4] [2020] HCA 14.
I accept the accused’s evidence that he would have cooperated with the officers had he known they were acting under the authority of a warrant. There is no reason to draw any other conclusion. The accused was co-operative when he understood the reason for the police attendance and had asked questions to understand why they were there.
Section 3G of the Act provides the power for an executing officer to use force against persons and things in executing the warrant as is necessary and reasonable in the circumstances.
In the absence of authority dealing with the approach to be taken when evaluating what was necessary and reasonable in the use of force under s3G, I have had regard to the circumstances as known by Agent Brown, whether the action he took was necessary and proportionate, and that he was reacting quickly in what he perceived to be circumstances of urgency, and not with the benefit of hindsight formulated after the pressured situation has passed. These are the same types of matters held to be relevant to an assessment of the degree of force that may be lawfully used to effect an arrest and the approach to the assessment of whether the police officer’s conduct was reasonable.[5] I also have had regard to the context of the statutory power and the civil liberties abrogated by its exercise.[6]
[5] South Australia v Crossley [2020] SASCFC 128 [21].
[6] R v Nguyen (2013) 117 SASR 432 at [22].
The force used in holding the accused’s arm was proportionate to what Agent Brown was wanting to achieve. I accept that Agent Brown wanted to secure the phone as soon as he saw it and he was concerned about the risk of destruction of evidence, but I do not consider it was necessary or reasonable for Agent Brown to have grasped the accused’s arm in circumstances he had not informed him of his authority to enter or the power to take the phone.
Prior to Agent Brown telling the accused that he was taking his phone, and using force by grabbing the accused’s arm, the accused had not done anything overtly to indicate that he might throw it. He was cooperating and walking towards Agent Brown to speak to him. The accused’s demeanour was consistent with him having been confronted by police in his premises who wanted to speak to him.
It was prudent for the officers to be alert to the risk of potential violence and to respond in a proportionate manner. The lack of compliance with s3ZS at the time of entry heightened the need for Agent Brown to discharge the requirements under s3H, to ensure the accused understood that Agent Brown had authority to take the phone and was given the opportunity to comply.
There was no urgency to act before giving the accused the opportunity to deliver the phone in the knowledge Agent Brown had authority to take it. Agent Brown could have informed the accused that he was in possession of a warrant and given him the opportunity to permit him to take the phone. The use of force in grasping the accused’s arm was not necessary or reasonable in the circumstances. The arrest that followed occurred under a mistaken belief that the accused was obstructing the lawful use of force.
The use of force in grasping the accused’s arm enlivens my discretion to exclude the seizure of the phone.
Search of the accused
After his arrest the accused remained seated on the ramp, with his back against a wall. The accused asked what he was hindering. The accused said they frightened him as he did not understand why they were there. Detective Brevet Sergeant Dunworth searched the accused’s pockets. At this time the video was being recorded by Detective Brevet Sergeant Chadbourne.
The accused gave evidence that he was experiencing heart palpitations at this time which occur when he has a panic attack and had consumed two cans of alcohol before police attended. He said when he has a panic attack, he operates on default, and concentrates on breathing. He had some years prior been prescribed antidepressants but could not recall when he last took medication for depression.
Detective Brevet Sergeant Dunworth did not inform the accused of his rights under section 79A of the Summary Offences Act 1953 and did not warn him that anything he said may be taken down and used in evidence.
Detective Brevet Sergeant Dunworth gave evidence that at this time she was a junior member of the JACET team and her understanding at that time, was that responsibility for the accused after his arrest for the hinder offence lay with the Commonwealth officers. Detective Brevet Sergeant Dunworth was not aware of the source of her power to search the accused’s pockets. Detective Brevet Sergeant Dunworth agreed she would have cautioned the accused if she was going to ask him questions in relation to the State offence of hindering police, but that it was a Commonwealth investigation.
I find that it was not impracticable for Detective Brevet Sergeant Dunworth to have informed the accused of his rights under s79A of the Summary Offences Act 1953 at the time of his arrest.
Section 3ZR of the Act provides that an ordinary search or frisk search under Part 1AA of the Act must if practicable be conducted by a person of the same sex as the person being searched. It was argued by the accused that the search by Detective Brevet Sergeant Dunworth of the accused’s pockets was unlawful, as it was reasonably practicable for the search to have been carried out by Agent Brown who stood immediately next to the accused.
I considered Agent Brown’s explanation that it was ‘more practicable’ for Detective Brevet Sergeant Dunworth to carry out the search because she was closer to the accused, was an assessment he made after the event. There was no evidence that Agent Brown turned his mind to this issue at the time of the search or that he knew, prior to it occurring, that Detective Brevet Sergeant Dunworth was going to perform that search.
There was no urgency to carry out the search as the accused was handcuffed and seated. It was plainly practicable for Agent Brown to have carried out the search. I do not consider that Agent Brown turned his mind to the terms of s3ZR at the time.
However, I am satisfied that the search was lawful, as Detective Brevet Sergeant Dunworth had the power under s81 of the Summary Offences Act 1953 to search a person taken into custody, and there was no requirement that it be undertaken by an officer of the same sex as the arrested person. If I am wrong about that, to the extent the search was unlawful, it did not result in the obtaining of any evidence.
PIN/Passcode
Agent Brown asked the accused why he threw the phone. The accused said it was because he scared him. Agent Brown asked the accused for the PIN to the phone, which the accused immediately provided. Agent Brown gave evidence that if the accused had not provided the PIN, he would have served him with the s3LA order. Agent Brown gave evidence that he did not caution the accused, because he had not arrested him.
Notwithstanding that Agent Brown did not arrest the accused, the accused was entitled to his rights under s79A of the Summary Offences Act 1953 and was entitled to be cautioned before he was asked questions. I considered that Agent Brown’s explanation that he did not caution the accused because he had not performed the arrest was unsatisfactory, given that Agent Brown later ‘unarrested’, the accused for the offence of hinder pursuant to his understanding that he had the same powers as an officer of the South Australian Police under the “Special Constables Act”. This may have been a reference to s59 and s61 of the Police Act 1988 which permits the appointment of special constables to exercise the power and responsibilities as a member of the South Australian Police.
I consider that Agent Brown was reconstructing events, and that it was likely he did not turn his mind to cautioning the accused at this time.
Agent Brown knew at the time he asked the accused why he had thrown his phone and for his PIN, that he had been arrested and not been cautioned.
The accused gave evidence that he did not know why he gave his PIN to police and did not know if he would have done so if he had been told he did not have to answer questions. The accused agreed in cross examination that had it been explained to him that police had an order that enabled them to require him to provide the PIN to his phone, and that the failure to do so would be an offence, he would have given them the PIN.
It is not in dispute that the accused was under arrest for the offence of hinder, a State offence, and that he had not been provided with his arrest rights pursuant to s79A of the Summary Offences Act 1953 and a formal caution had not been given, that the accused had the right to not answer questions, a right also preserved under s23S(a) of the Act and required under s23F(1)-(2) of the Act, and he was not advised of the right to communicate with a friend, relative and legal practitioner in accordance with s23G of the Act.

Section 23F provides:
·(1) Subject to subsection (3), if a person is under arrest or a protected suspect, an investigating official must, before starting to question the person, caution the person that he or she does not have to say or do anything, but that anything the person does say or do may be used in evidence.
·(2) The investigating official must inform the person of the caution in accordance with subsection (1), but need only do so in writing if that is the most appropriate means of informing the person.
·(3) Subsections (1) and (2) do not apply so far as another law of the Commonwealth requires the person to answer questions put by, or do things required by, the investigating official.
The accused argued that the provision of the PIN following the request for the PIN without first being cautioned, enlivened the public policy discretion to exclude the evidence obtained from the phone, which was obtained by using the PIN.
The prosecution led evidence from Senior Constable Soltes from the SA Police digital evidence section, that an examination of the accused’s phone without recourse to the PIN to the phone resulted in the following:
-Identification that the KIK messenger application was installed on the phone;
-The KIK messenger application folder, which would include chat messages and photos or videos exchanged on the application could not be accessed;
-Part of the evidence comprising the conduct alleged in count 1 could not be accessed, namely four image files and one video file said to be exchanged with another account on the KIK messenger application;
-The phone was supported for the ‘brute force’ technique, a process of running a list of numbers and alphanumeric characters against the phone until a match is found that unlocks the phone. The process can take between minutes, hours, days, months or years depending on some variables;
-It was possible to get access to the accused’s phone without a pin using the Brute Force method, but the likelihood of gaining access is unknown.
As the evidence only establishes that it is possible to gain access to the accused’s phone without a PIN, I consider the availability of the brute force option is of little weight to the relevant considerations. There is no basis to conclude that the evidence might be obtained in a timely manner.
The prosecution relied on R v Moham, Chaarani & Moukhaiber(Ruling 2) [2019] VSC 72 in support of a submission that, to the extent the accused was an ‘arrested person’ for a Commonwealth offence, the request for the PIN did not amount to questioning or carrying out an investigation into his involvement in an offence, but was no more than a request, supported by the s3LA order, and accordingly, the police were not obliged to provide the accused with his rights under the Act, including s23F and s23G.
The case of R v Moham, Chaarani & Moukhaiber(Ruling 2) is distinguishable. In that matter the accused’s rights to communicate with a lawyer under s23G were not given before he was asked to provide his PIN. There was an evidentiary dispute regarding the order of events and whether a caution was given before a copy of the 3LA order was given to the accused. The trial judge Tinney J accepted the Federal Agent’s evidence that he provided the accused with the section 3LA order addressed to him for him to read, and cautioned him, and provided his rights in accordance with part 1C of the Act. The Federal Agent gave evidence that he explained to the accused the 3LA order was a request to provide assistance to access his mobile phone.
In response to the request in the order, and made by the Agent, the accused provided his PIN. Tinney J’s finding that the Federal Agent was not questioning as defined in the Act, involved a factual finding that the accused provided the PIN in response to the request in the 3LA order.
In contrast, in this matter the accused was asked to provide his PIN moments after being wrestled to the ground in his own home, following his refusal to comply with a demand to hand over his phone, being unaware of the reasons for police attendance and unaware of the existence of a search warrant or the 3LA order, and he was not cautioned or given his arrest rights under s79A of the Summary Offences Act. The accused was frightened and confused.
Although the accused said he did not know why he provided his PIN number, in the circumstances, his compliance in the immediate aftermath of his arrest cannot be characterised as the exercise of a free choice.
Seizure of the phone and its contents -the public policy discretion
I have had regard to the principles and approach to the Bunning v Cross[7] discretion as recently summarised in Thomas v the King [2024] SASCA 51, Young v The King [2024] SASCA 47 and R v Golja [2017] SASCFC 61 at [33]-[35] per Stanley J.
[7] (1978) 141 CLR 54.
I have also been referred to and considered Middlin-Hannah v the Queen [2020] SASCFC 112. Both Middlin-Hannah and Thomas v The King involved a request for a passcode to a phone to permit the examination of a phone. Neither case provides substantial assistance in resolving the issues in this matter, as each turn on their facts which are distinguishable. In Thomas, police were not in possession of an order compelling the appellant to provide his PIN nor were there grounds to obtain such an authority. The Court held the failure to afford the accused his arrest rights was significant in circumstances where legal advice would have likely advised the appellant that he need not provide his PIN and should not do so, and the failure to give the arrest rights had capacity to alter the power imbalance in circumstances that resulted in significant unfairness to the appellant.
I am satisfied that in a context where Agent Brown had the 3LA order, and shortly after the arrest, explained the terms of the warrant to the accused, cautioned him and advised him of his right to speak to a lawyer and facilitated that right, Agent Brown’s conduct in asking for the PIN when he did, was not motivated by an intention to trick the accused or to gain an unfair advantage.
I do not consider any of the officers acted in wilful, conscious disregard of their obligations, but Agent Brown’s conduct in entering the premises and then moving to immediately take the phone, demonstrated that he prioritised the securing of evidence at the expense of an appropriate focus on the obligations that applied to him. However, I do not consider that his conduct, considered either separately or in combination, reflected a calculated disregard of the law or demonstrated recklessness to his obligations.
There is no evidence that there is widespread misunderstanding by police of the conditions governing the search warrant powers in the Act. Federal Agents have at their disposal the Australian Federal Police Functional Governance Better Practice Guide in relation to search powers which includes a suggested approach to compliance with the obligations.
Counts 1 and 2 are serious offences. Each charge carries a maximum penalty of 15 years imprisonment. There is considerable public interest in charges involving child abuse material being tried and brought to account. Count 2 is solely reliant on evidence obtained from the phone. The prosecution case in relation to count 1 would be significantly weakened by the exclusion of the evidence. The evidence is strongly probative of the issues to be determined at trial.
Neither Agent Brown’s nor Detective Brevet Sergeant Dunworth’s conduct affected the cogency of the evidence relating to the phone.
Agent Brown did not require the accused to provide his PIN by exercising the power under s3LA, however the existence of a valid s3LA order that would have been produced and complied with if the accused had declined, means that even if I considered the accused’s right to silence was abrogated by making the request without expressly relying on or referring to the order, I would not exercise the public policy discretion to exclude the evidence of the PIN and evidence obtained as a result of the PIN being obtained.
The request for the PIN in the absence of a caution and in the context of the preceding events did not result in unfairness to the accused. It is significant that Agent Brown had available to him the s3LA order which he would have expressly referred to, had the accused refused to provide the PIN. Reliance on the s3LA order would not have provided to the accused, any additional statutory rights, or entitlements. The Act does not require the production of or explanation of the terms of the s3LA order to the relevant person. I also note that a power such as the s3LA order may be relied upon to support an action or conduct, even where that power is not adverted to or intentionally exercised.[8]
[8] Police v Grozev [2006] SASC 353 [63] per Doyle CJ.
I do not consider that the circumstances justify the exercise of the discretion to exclude the seizure or the contents of the phone.
The record of interview
Ground 3 is that the record of interview between Agent Brown and the accused be excluded, due to the failure of the officer to advise the accused of his rights until Question 106 in the record of interview, and that the conduct of the police rendered the questioning unfair. As the prosecution do not intend to lead the portion of the interview before question 106, I have considered this ground as it relates to the remainder of the interview.
After providing the PIN to the phone, the accused asked what it was all about and said he did not understand. Detective Brevet Sergeant Dunworth said that it would be explained to him in two seconds.
The accused asked for that to be explained before they invaded his privacy. Agent Brown then told the accused he had a search warrant, and showed him a copy, holding the first page up for him to see it, then turned to the last page and showed to him the last page, stating it was signed by a Magistrate. The accused asked what it was for, and said he needed to know why they were there. He queried if he had missed a court date. Agent Brown said it was about his internet usage. The accused expressed disbelief and asked what he meant. Agent Brown confirmed it was about internet use.
In the circumstances as they unfolded, this was the next earliest opportunity for compliance with s3H of the Act.
The accused was then led in handcuffs to sit at a table in the rear room. Agent Brown told the accused he was going to let him read the warrant, to see why they were there, and invited the accused to let him know when he wanted him to turn the page. The accused appeared to read the first page and expressed disbelief that it related to child abuse material and asked if it was a joke. Agent Brown said they were not joking, that was the reason they were present and to read it, and get it through his head, and then they would ask him some questions. The accused repeated that he did not understand any of it. Another officer told the accused to read through some of it.
The recording was stopped. When it resumed the accused was seated at the table in handcuffs. He was provided a drink of water and assisted to drink it. As Agent Brown addressed the preliminaries of recording who was present, the accused said to Agent Brown that he scared him, and that was why he threw his phone. He said he did not understand, and he was sorry. Agent Brown told the accused he had a search warrant that authorised the search of the premises. They were then joined by the accused’s partner, Deb, who the accused said he wanted present to help to keep him calm. The accused appeared to be sweating, was breathing heavily, and speaking in a heightened manner. Agent Brown said he had given to the accused a copy of the warrant to read. The accused said he did not read it properly and agrees he was given a copy of the rights of the occupier attached to the warrant but had not read or understood it.
Agent Brown read to the accused the offence that related to the warrant and told the accused the warrant authorised him and the other officers to search the premises and referred to the rights of the occupier. He explained what they could do while on the premises regarding electronic equipment. Agent Brown told the accused he was allowed to be present at the search so long as he did not hinder it and asked if he understood. The accused said he believed he did, and asked if they could search for electronic devices that he owned. Agent Brown clarified it was for any electronic devices on the premises. The accused repeated that he was overwhelmed, which was consistent with his demeanour, but indicated he understood he could ask questions at any point.
One of the contentions in the accused’s outline of submissions is that the police acted unlawfully and improperly by searching the premises without the occupier being present, as the accused was subject to interrogation at the time of the search, contrary to s3P(1) of the Act. The search that occurred while the accused was being interviewed, resulted in a Harley Davison singlet being located and observations made of the room where it was found, evidence relevant to establishing identity of the person sending the communications the subject of the investigation. Exclusion of those items has not been sought.
The accused was cautioned, commencing at question 105 of the interview, and he indicated he understood he did not have answer questions. Agent Brown informed him of his rights to communicate with a friend or relative to inform them of his whereabouts and that he may communicate with a legal practitioner. The accused asked to speak to a lawyer. The recording was paused for that to occur.
During the period the recording was paused, Agent Brown ‘unarrested’ the accused and removed his handcuffs. A complaint is made that these events occurred in breach of s74D of the Summary Offences Act 1953, although there is no application to exclude any conversation that occurred during that period. In any event, as there is no evidence that an interview took place during that period, there is no basis to consider there was a failure to comply with s74D.
The recording resumed. The accused said he had had some alcohol to drink and felt stressed. He answered questions about devices at the premises and said the phone in his hand when police attended was his phone, and he had owned it from about August 2021, it was subscribed with Telstra, and he provided the phone number. He said he used the phone for the internet, snapchat, KIK messenger and sexting females, including the exchange of sexualised pictures. He provided his username for Snapchat and his Hotmail email address, which was the same email address registered with the KIK messenger account used in the communications with the undercover operative. He provided a username, “toobaz09”, which was the same handle that on the prosecution case was used to communicate with the undercover operative. On some occasions, when the accused’s partner Deb prompted the accused to respond by answering ‘no comment’, the accused declined to answer a question.
The accused gave evidence that he spoke with a lawyer and the advice he recalled was ‘no comment’. The accused said he did not know why he answered questions after that and did not understand what ‘no comment’ meant and did not fully understand that he did not have to say anything. He said he did not understand anything about what the police officer told him. In cross examination the accused agreed he told police he understood why they were there but could not recall if he understood why the police were there and could not recall if it was serious.
The accused’s evidence about his understanding about the interview and that he did not understand what ‘no comment’ meant was implausible.
I accept that the accused was anxious at the time of the interview, as that is consistent with his situation and his demeanour, however nothing about the accused’s emotional state at that time suggested that his right to silence was compromised, or that his responses were involuntary.
The accused clearly understood that the allegations were serious. His spontaneous reaction and heightened response on learning of the nature of the offence the subject of warrant, including his expression of disbelief and shock, demonstrated he understood the nature of the offence and its seriousness. The accused’s subsequent responses during the record of interview also indicated that he understood the allegations were serious, including the words he used, and the tone and volume of his voice.
At question 117 the accused was asked if he understood that if he chose to answer questions, the answers could be used as evidence in court.
AOkay. Yes. I’m – I’m pretty sure – I’m pretty sure that yes, I do. So I don’t have to say anything?
The accused’s subsequent responses included asking questions to clarify his rights, and a request to communicate with a legal practitioner. These responses were consistent with the accused understanding the information that was provided to him.
The accused understood what ‘no comment’ meant. His partner Deb prompted him to respond to some questions with ‘no comment’ during the interview. When that occurred, on most occasions the accused said ‘no comment’ in a manner consistent with him intending to decline to answer the question that had been asked.
On one occasion when the accused’s partner reminded him that he did not have to answer, Agent Brown said, “Exactly. You don’t have to answer that, but you don’t have to be embarrassed about what you’re saying”. The accused’s partner again told the accused he could say no comment. The accused then said he would not comment further because he was just trying to do the right thing. The accused went on to provide further information, but when asked who he was sexting, he said, “I couldn’t tell you who. Like, no comment. I couldn’t tell you.” The accused continued to answer questions, and subsequently from time to time responded to questions with ‘no comment’.
The accused was advised of the right under s3P to observe the search. The accused contended that the police acted unlawfully and improperly by conducting the search without the occupier being present, as he was being subjected to interrogation at the time of the search. The accused did indicate to Agent Brown he understood he could be present during the search, but in a context where he indicated he was overwhelmed, and he was not asked if he wished to observe the search and cease the interview. There is no evidence that the accused wished to be present for the search. I accept the accused was distressed and overwhelmed at times, and there is a risk that a person may not feel able to exercise their rights to observe a search during an interview in those circumstances, but there is no evidence that that risk eventuated. Significantly, there was no evidence that these matters influenced his participation in the interview, or his responses in the interview.
I have had regard to the relevant principles concerning the unfairness discretion as addressed in Lindsay v The King [2022] SASCA 138.
There was nothing about the way the interview was conducted that provides a basis to conclude that the interview was unfair. I do not consider that the preceding events to the interview meant that the interview was the result of impropriety, or to express that another way, there is no basis to consider that the accused’s admissions might not have been made if the obligation under s3ZS had been discharged and a copy of the warrant provided to the accused prior to the attempt to take the accused’s phone from his person, or in circumstances if he had not been arrested.
The accused’s responses in the interview were consistent with an awareness of his rights and a capacity to act on them. There is no evidence that his will was overborne. The accused understood his right to silence. That he answered some questions and not others demonstrated that his answers were the result of a free choice.

The discretion to exclude the record of interview is not enlivened. The application is refused.