Thomas v The King

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.