Thomas v The King

Case [2024] SASCA 51

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Appeal: Criminal)

THOMAS v THE KING

[2024] SASCA 51

Judgment of the Court of Appeal  

(The Honourable President Livesey, the Honourable Justice Doyle and the Honourable Justice Bleby)

18 April 2024

CRIMINAL LAW - EVIDENCE - JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE - POLICE INTERROGATION - PROPRIETY OF POLICE QUESTIONING AND OTHER CONDUCT BY POLICE - ADMINISTERING CAUTION - PARTICULAR CASES

CRIMINAL LAW - EVIDENCE - CONFESSIONS AND ADMISSIONS - STATEMENTS - VOLUNTARY STATEMENTS - INDUCEMENT - CAUTION AS TO STATEMENT BEING USED FOR OR AGAINST ACCUSED

CRIMINAL LAW - APPEAL AND NEW TRIAL - PROCEDURE - POWERS OF COURT ON APPEAL - POWER TO ORDER NEW TRIAL OR QUASH CONVICTION AND DIRECT ENTRY OF VERDICT OF ACQUITTAL - WHERE CONVICTION QUASHED AND VERDICT OF ACQUITTAL ENTERED

CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST DECENCY AND MORALITY - CHILD PORNOGRAPHY AND CHILD EXPLOITATION MATERIAL OFFENCES

Appeal against conviction and sentence.

On 20 July 2023 the appellant was convicted on a trial by judge alone of four child exploitation material (‘CEM’) offences contrary to ss 63(b) and 63A(1)(a) of the Criminal Law Consolidation Act 1935 (SA).

On 12 March 2021 police attended at a fire at Flaxley. They suspected the appellant, a CFS volunteer, had lit the fire.

Police issued a general caution to the appellant prior to interviewing him at the scene, which included that he was not required to answer questions and advising that the interview was being video‑recorded. Just after 3:50 am, the appellant asked if he would be required to attend at the police station the following day. A police detective responded with ‘we’re going to deal with this now’, and ‘I need you to hand me your phone over’. The trial judge held that police had placed the appellant under de facto arrest at this time. Following that exchange, an officer asked the appellant ‘what’s the access code to get into the phone’. The appellant did not know the numbers and offered to de-activate the phone. The appellant then showed the officers how to unlock the phone by pointing to the numbers and the PIN was noted by them before the mobile phone was seized.

Police formally arrested the appellant shortly thereafter. The appellant was advised of his arrest rights at that point. He requested a solicitor but was told that was not possible as it was the early hours of the morning. He accepted a suggestion that he have a friend or relative present while they continued the interview. The police took the appellant to the station where he was charged with arson. The arson charges were subsequently discontinued. However, police then discovered CEM on the appellant’s mobile phone. On 29 April 2021 the appellant was arrested in respect of the CEM offences. 

The issues arising on the first ground of appeal were whether the police were required to issue a specific caution before requesting the PIN to the appellant’s mobile phone, and whether the primary…

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Thomas v The King [2024] SASCA 51
Case
[2024] SASCA 51
Decision Date

CaseChat Overview and Summary

The case of *Thomas v The King* was heard in the Supreme Court of South Australia, Court of Criminal Appeal. The appellant, Thomas, was convicted of offences related to child exploitation material. The appeal concerned the admissibility of evidence obtained from the appellant's mobile phone, which was accessed by police during an interview at the scene of a suspicious fire.

The primary legal issue before the Court was whether the evidence obtained from the appellant's mobile phone should have been excluded in the exercise of the trial judge's discretion. This involved considering whether the police conduct in obtaining the phone's passcode was improper, particularly in light of the appellant's de facto arrest and the failure to afford him his arrest rights, including the right to seek legal advice. The Court also considered the principles governing the judicial discretion to exclude evidence under *Bunning v Cross*, including the nature of the offence, the probative value of the evidence, and the impropriety of police conduct.

The Court reasoned that while the question of excluding the evidence was finely balanced, the failure to inform the appellant of his arrest rights, which would likely have included advice not to provide his phone's passcode, rendered the subsequent admission of the phone's contents unfair. The Court noted that advice from a solicitor would likely have extended to advising the appellant not to provide the passcode, a consideration that the trial judge had failed to adequately regard. Applying the principles of *Bunning v Cross*, the Court found that the unfairness to the appellant tipped the balance in favour of excluding the evidence.

Consequently, the Court granted leave to appeal, allowed the appeal, quashed the convictions, and entered verdicts of acquittal. The appeal against sentence was dismissed as it was rendered unnecessary by the quashing of the convictions.

Orders

Orders of the court

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Background

Background to the litigation

Ground 4 arises as of right. The Director conceded it was appropriate for the question of leave to appeal on Ground 1 to be referred to the Court for argument as on appeal.Background On 12 March 2021 at 1:33 am, police attended at a suspicious fire at Flaxley. The appellant was present at the scene of the fire in his capacity as a volunteer of the Country Fire Service (‘CFS’) of Macclesfield. Senior Constable Allen Matthews (‘SC Matthews’) spoke to CFS officers and was advised that the appellant had alerted authorities about the fire and that he was one of the crew who had responded. However, when police spoke to the appellant, he denied he had alerted authorities. Detective Brevet Sergeant McClean (‘DBS McClean’) arrived at the scene at 3:25 am. SC Matthews advised him of the matters referred to above. At 3:36 am, SC Matthews asked another CFS volunteer to get the appellant to exit a CFS truck. The appellant exited the truck and approached the police officers, who moved a short distance away. SC Matthews video-recorded the interview that followed. DBS McClean introduced himself to the appellant as a police detective. He said that he suspected that the appellant ‘may have some involvement in starting this fire’. He cautioned the appellant verbally in an exchange which was transcribed, accurately, in the following terms: QSo before we go any further I’m going to ask you some further questions.AOkay.QYou’re not obliged to answer them…AYeah.Q…but anything you say is being recorded on video…AOkay, so it’s being recorded?QYeah.AOkay.Q…and may be used in evidence. AOkay?QDo you understand that? AYes. DBS McClean continued to ask questions of the appellant about whether he started the fire and in relation to his actions that evening. During the interview, the appellant produced his phone from his pocket on two occasions and accessed its contents. One of these occasions was to show the call log to DBS McClean. The other was to obtain the name of a CFS colleague. These instances involved the appellant unlocking his phone, handing it to DBS McClean and allowing DBS McClean to look at it. DBS McClean then gave the phone back to the appellant. At 3:50 am, the appellant asked, ‘Is there anything else you want to ask?’ The following exchange then occurred:QYeah, yeah, plenty, Jake.AUm, do you want me to come to your station tomorrow? What’s the go?QNo, no, no, no, mate, we’re going to deal with this now.AOkay.QOkay?AAlright.QSo I need you to hand me your phone over.AYeah.QWhere’s your car at the moment?AAt the station.QSo we’re going to search your car.AOkay.QSo…AHey?QJust hand…AHand the phone over?QYeah.MATTHEWSQWhat’s the access code to get in the phone?AUm, I can deactivate it if you want.QNo.MCCLEANQNo, no, no, no.MATTHEWSQJust tell us the access code please.ACan you… Actually, sorry, if you, if you go out of it. I did it on an old friend’s name ‘cause, um…QWhat, what, just, just stop.AI, I don’t, I don’t know what the numbers are. That’s my problem. I don’t know off…QShow me how you unlock it.AYeah, 047479.[1]MCCLEANQ047479.AYeah.[1] It is apparent from the audio-visual recording that this was in fact said by SC Matthews, reading out the numbers that he appellant typed in.

Evidence

Evidence Before The Court

As the trial judge correctly observed, had the appellant been able to access a solicitor before being asked any further questions, a solicitor’s advice may have included his right to refuse to provide the PIN. By itself, that might not be thought to take matters much further than the effect of the general caution as discussed above. However, the de facto arrest takes things further. Advice from a solicitor would likely not only have included that the appellant had the right to refuse to provide the PIN but would likely have extended to advice that he should not do so.The discretion to exclude the evidence of the contents of the phone In Middlin-Hannah, Livesey J observed:[17][17] Middlin-Hannah v The Queen (2020) 137 SASR 366 at [155].By contrast, if the discretion recognised in Bunning v Cross should have been considered regarding the exclusion of the evidence discovered on the mobile phone, found with the benefit of a passcode obtained without giving the appellant a caution, the matters to be considered when determining whether to exclude that evidence include the following:[18][18] Bunning v Cross (1978) 141 CLR 54 at 74-75 (Stephen and Aickin JJ) and R v Swaffield (1998) 192 CLR 159 at [135] (Kirby J).1.The nature of the offence charged. 2.The probative value of the evidence, and its importance in the proceedings.3.Whether the police conduct involves illegality, impropriety,[19] entrapment,[20] or unfairness.[21]4.Whether the conduct by police was deliberate, or resulted from a mistake.5.Whether the nature of the conduct affected the cogency of the evidence so obtained;6.The ease with which those responsible might have complied with the law in procuring the evidence in question.7.The legislative intention (if any) in relation to the law that is said to have been infringed.8.Whether the conduct was encouraged or tolerated by those in higher authority in the police force or, in the case of illegal conduct, by those responsible for the institution of criminal proceedings.[22](Footnotes in original)[19] Cleland v The Queen (1982) 151 CLR 1 at 20 (Deane J).[20] Ridgeway v The Queen (1995) 184 CLR 19 at 31-32 (Mason CJ, Deane and Dawson JJ).[21] R v Lobban (2000) 77 SASR 24, cf Question of Law Reserved (No 1 of 1998) (1998) 70 SASR 281 at 288-289 (the discretion does not apply where police officers give false evidence as to how material was obtained), Director of Public Prosecutions v Moore (2003) 6 VR 430 at [55] (the unlawful or improper conduct must be the means by which the evidence was obtained).[22] Ridgeway v The Queen (1995) 184 CLR 19 at 31-32 (Mason CJ, Deane and Dawson JJ). In Young v The King,[23] Doyle JA discussed in detail the standard of appellate review when considering the public policy discretion to exclude evidence. His Honour expressed a view, without deciding, that the correctness standard applied, rather than the principles of appellate restraint.[24] That question was not agitated in the present matter and there is no need here to rehearse Doyle JA’s analysis in Young. In the present matter, we would review the exercise of the discretion on the basis that even if the principles of appellate restraint apply in accordance with House v The King,[25] the trial judge failed to have regard to a material consideration. That was the nature of the advice that a solicitor would likely have given the appellant.[23] [2024] SASCA 47.[24] Young v The King [2024] SASCA 47 at [141].[25] (1936) 55 CLR 499 at 504; as to which see, e.g., R v Rockford (2015) 122 SASR 391 at [37]-[47] (Stanley J, Kourakis CJ and Sulan J agreeing).

Decision

Reasons for decision

The question of the discretion to exclude the evidence is finely balanced. However, in all the circumstances referred to above, in our view the unfairness to the appellant consequent on the failure to give him his arrest rights on his de facto arrest tips the balance in favour of exclusion of the evidence. Conclusion It is unnecessary to determine Ground 4 or merits of the appeal against sentence. Absent the evidence of the contents of the appellant’s phone, the convictions cannot stand. We grant leave to appeal on Ground 1, allow the appeal, set aside the convictions and enter verdicts of acquittal. The appeal against sentence is necessarily dismissed.

Ratio Decidendi

Legal Principle Established

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