District Court New South Wales Medium Neutral Citation: R v WAKE Tyler [2021] NSWDC 276 Hearing dates: 23 June 2021 Date of orders: 25 June 2021 Decision date: 25 June 2021 Jurisdiction: Criminal Before: Priestley SC DCJ Decision: Sewe [66] Catchwords: EVIDENCE — Discretions — Exclusion of evidence — Improperly or illegally obtained evidence Legislation Cited: Crimes Act 1900 (NSW) Crimes (Appeal and Review) Act 2001 (NSW) Supreme Court Act (1970) Law Enforcement (Powers & Responsibilities) Act 2002 (NSW) (LEPRA) Law Enforcement (Powers and Responsibilities) Regulation 2016 (NSW) Cases Cited: Gianoutsos v Glykis [2006] NSWCA 137 Englebrecht v DPP [2016] NSWCA 290 AG v DPP [2015] NSWCA 218 Charara v R [2006] NSWCCA 244 Fox v Percy [2003] HCA 22 McKellar v Director of Public Prosecutions [2011] NSWCA 91 Director of Public Prosecutions (NSW) v Burns [2010] NSWCA 265 Allesch v Maunz [2000] HCA 40 Van Der Meer v R [1988] HCA 56 Wilson v NSW [2010] NSWCA 333 Lavery (1978) 19 SASR 515 O'Donohue v R (1988) 34 ACrimR 397 Texts Cited: Odgers, 15th Edition Category: Principal judgment Parties: Crown (Regina) Wake (Appellant) Representation: Endacott Solicitor for the DPP Beasley Solicitor for the Appellant File Number(s): 2019/00145966 Publication restriction: Unrestricted Decision under appeal Court or tribunal: Court Jurisdiction: Local Court of NSW Citation: Nil Date of Decision: 18 December 2020 Before: Local Court Magistrate Rodger File Number(s): 2019/00145966 Judgment Introduction 1. On 18 December 2020 the appellant Tyler Wake was convicted in the Local Court of two offences. One offence was filming a person's private parts without consent to obtain sexual arousal in contravention of section 91L (3) of the Crimes Act (CA) (count 1). The other was of common assault in contravention of section 61 CA (count 2). Following conviction he was sentenced to a community corrections order in respect of each offence for periods of three years and two years respectively, both dating from the date of conviction. 2. The matter was heard on 22 October 2020 and 30 October 2020. On the latter date the magistrate found the offences proven and on 18 December 2020 proceeded to conviction and sentence. Much of the time at hearing was taken up on the voir dire. The appellant objected to the admission of evidence obtained during the execution of a search warrant, specifically evidence of the photograph ("the photo") the subject of count 1. The appellant also objected to the admission into evidence of admissions obtained from the appellant in the course of an electronically recorded interview (ERISP). The ruling of the magistrate was to permit the evidence. The appellant's appeal challenges those rulings. Leave to appeal 1. At the commencement of the hearing of the appeal the matter of leave was raised. By section 11 of the Crimes (Appeal and Review) Act any person who has been convicted by the Local Court may appeal to the District Court against that conviction save for certain circumstances that do not apply here. By subsection 2 the appeal must be made within 28 days after the sentence has been imposed. The date of sentence was 18 December 2020 and the appeal was not lodged until 2 February 2021. It was said on behalf of the appellant from the bar table without objection from the Crown that the Legal Aid office reopened on 11 January and the appellant was in custody for unrelated matters from 19 January and that there had been some discussion concerning an appeal on 14 January. The offender was spoken to by AVL on 2 February being the first time he was spoken to since going into custody. 2. When the appeal is not lodged within 28 days but is lodged within three months which is the case here then by section 13 the appeal may be made with leave. The Crown's position was that this was a matter for the Court. Leave was granted in the circumstances of the conviction and sentence occurring on what must have been almost the last day of the court year, the intervening holiday break and closure of the Legal Aid office, and the incarceration of the appellant which doubtless made communications more difficult. Nature of appeal[1] 1. Being an appeal against conviction the matter proceeds pursuant to section 18 of the Crimes (Appeal and Review) Act. The process under this section is different to that of an appeal against sentence pursuant to section 17. The major distinction between the two sections is that no leave is required by section 17 to lead fresh evidence. That distinction means that section 17 is a hearing de novo whereby fresh evidence can be led without leave and the appeal is decided as if the matter were being conducted afresh. There is no requirement under s17 for the court determining the appeal to find error on the part of the magistrate before it can intervene. 2. The appeal process under section 18 has been described as being akin to an appeal to the Supreme Court under section 75A of the Supreme Court Act. Adopting that approach would require error to be found in order for this appeal to be successful. There is however a conflict in the Court of Appeal authorities as to whether error does need to be found. Gianoutsos v Glykis [2006] NSWCA 137 says no error is necessary; the judgment of McColl JA in Englebrecht v DPP [2016] NSWCA 290 clearly supports that error is necessary and Basten JA in AG v DPP [2015] NSWCA 218 considers error is required, though in that case the other two judges expressed no view on the matter. 3. In Engelbrecht which was decided after Gianoutsos, and after section 18 had been amended appears the following passage at [89], which adopts the reasoning from Charara v R [2006] NSWCCA 244 which was decided on the same legislation as Gianoutsos but with a different outcome: The nature of a conviction appeal pursuant to the Appeal and Review Act, s 18 in its current form was summarised in Dyason v Butterworth,[68] as follows: [26] A s 18(1) appeal is not an appeal de novo: Charara v R [2006] NSWCCA 244; (2006) 164 A Crim R 39 (at [16] – [24]) per Mason P (Kirby and Hoeben JJ agreeing). Although s 18(1) is no longer precisely in the same form as it was when considered in Charara, the amendment does not detract from Mason P's reasoning: B v Director of Public Prosecutions [2014] NSWCA 232 (at [39]) per Beazley P (Barrett JA and Tobias AJA agreeing). [27] The approach to be taken on a s 18(1) rehearing is analogous to that taken to a civil appeal under s 75A of the Supreme Court Act as explained in Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 (at [23]): McKellar v Director of Public Prosecutions [2011] NSWCA 91 ('McKellar') (at [8]) per Basten JA (Beazley P and Whealy JA agreeing). The 'judge is to form his or her judgment of the facts so far as able to do so, recognising the advantage enjoyed by the magistrate who heard and saw the witnesses in the lower court': Director of Public Prosecutions (NSW) v Burns [2010] NSWCA 265 (at [23]) per Beazley JA (Basten and Campbell JJA agreeing). While the Magistrate's reasons are not part of the transcript of evidence, recourse can be had to them on appeal as otherwise the appellate function cannot properly take place: Charara v R (at [23]). [28] The powers of the District Court on a s 18(1) rehearing are exercisable where the appellant demonstrates that the order the subject of the appeal is the result of a legal, factual or discretionary error in which event the appellate court can substitute its own decision based on the facts and law as they then stand: Allesch v Maunz [2000] HCA 40; (2000) 203 CLR 172 (at [23]) per Gaudron, McHugh, Gummow and Hayne JJ." 1. I have adopted this passage as representing the approach to adopt in determining a s18 appeal. The debate only assumes significance in cases where no error has been established. Whether the present is such a case will be determined below. 2. Significantly what emerges from this is the need for the judge hearing the appeal to take proper account of the advantage had by the magistrate in hearing the oral evidence and observing the witnesses in the witness box. The issues 1. There are two major issues going to the admissibility of the photo found on a Samsung mobile telephone ("the phone") which in turn was found by the search being carried out. The first is whether or not at the time that search was carried out the appellant was under arrest. If the appellant can establish that he was under arrest then the provisions of Part 9 of the Law Enforcement (Powers & Responsibilities) Act ("LEPRA") apply to him which require that he be given a caution. It is common ground that at no time prior to the appellant providing the police with his password for the phone, was the appellant given a caution, including that the appellant was not informed of his right to silence and the lack of any need to answer any questions. Thus the argument is if the appellant was under arrest the non compliance with Part 9 constitutes a contravention of Australian law, and the obtaining of the password, and the photo then extracted, was a consequence of that contravention, so that section 138 of the Evidence Act prevents its admission into evidence. The appellant argues the magistrate erred in finding that the appellant was not under arrest at this time. The second major issue is whether the extraction of data from the phone required the password, or whether the extraction could occur without the password. This is relevant if the argument gets to the point of considering the second limb of section 138 EA, and determining whether the desirability of admitting the evidence outweighs the undesirability of admitting the evidence. 2. There is also an issue relating to the photo as to whether in so far as section 90 EA has a role to play it is relevantly a representation capable of being an admission. There was a further issue in this regard as to whether the appellant should be permitted to raise a section 90 EA argument as a fresh argument on appeal for there was no submission made below relying on section 90 EA in relation to the photo however it was relied upon in relation to the ERISP. It will only be necessary to consider this if the section 138 argument concerning the photo fails. 3. As to the admissibility of the ERISP the appellant relies on section 90 EA and says it is unfair to rely on that evidence because it is plain from the interview itself that the appellant was in various states of distress and also because the support person, the appellant's father was not performing a satisfactory role as a support person. The facts re the photo 1. The police case consisted mainly of a statement of Detective Senior Constable Kayla McDonnell and the transcript of the ERISP. In addition there were a number of statements from other police who had been involved with the execution of a search warrant. Those additional statements will be referred to as necessary and in particular the statement of Detective Senior Constable Andrew Martin whose evidence goes to the extraction of information from the phone. That extraction included the photo relied on to make out count 1. 2. Also relevant were various documents tendered as exhibits (Exhibit 1) which included the application for a search warrant. 3. DSC McDonnell in her statement sets out receiving information about online activity occurring from the appellant's address. Exhibit 1 contains a document being a form 11 relating to a search warrant and which shows on 23 April 2019 a search was authorised of the appellant's premises for telecommunications devices "which may be capable of storing child abuse material" and stating the applicant (another police officer) had reasonable grounds for believing those devices are connected with the offences of use a carriage service for child pornography material, and possessing child abuse material, offences different from those ultimately charged, though although the matter was not argued, the photo could well come within the meaning of child abuse material as defined by section 91FB . 4. The search warrant was executed on 24 April 2019 with DSC McDonnell the officer in charge. In her statement which was tendered and although not expressly so largely adopted by her it recounts the execution of the search warrant and refers to some photographs later found on the phone. The statement, in respect of the time prior to the appellant providing his password: 1. Does not state that there was any express statement by any police officer to the appellant that he was, or was not, under arrest. 2. Does not state that she, or any other officer, told the appellant that he was free to leave the house. 3. Does not state that she, or any other officer, told the appellant it was not necessary that he remain. 5. DSC McDonnell does state in her statement that she made arrangements for the appellant's father to attend the house. 6. In the statements of the other police officers who attended at the execution of the search warrant there was nothing said as to whether or not the accused was under arrest or whether he was free to go. 7. DSC McDonnell was cross-examined on 22 October 2020. That cross examination established the following: 1. At the beginning of the search warrant video the appellant's two brothers were at the house but they left. They were allowed to go. 2. A support person was arranged for the appellant due to his vulnerabilities which the police understood were aspergers and/or autism. 3. DSC McDonnell asked the appellant's father to remain at the property to be the appellant's support person. 4. It was put (at T7.26-.35) to DSC McDonnell that at a time when the police had just arrived there was a conversation which was not caught on camera where DSC McDonnell asked the appellant to "just take a seat whilst his dad came back?". The answer to that question was "yeah, I'd come out of-out from inside the premises whilst we secured the premises and whilst we waited. We made attempts to contact his father and yeah". I interpret that to mean that DSC McDonnell is agreeing with the proposition being put, namely that the appellant was being told to sit down and wait until his father got there. 5. Several questions later still at transcript page 7 at line 45 was the following: Q. I think you asked Tyler-this is not caught on the footage-but you asked Tyler a way to contact his dad and he asked if he could go get his phone but you told him to just stay where he was?" A. Yep. 6. At T8.4 it was squarely put to DSC McDonnell that Tyler was not really free to go anywhere whilst the search warrant was occurring and the answer was that he was. The police officer asserted "He was certainly free to go, yeah he wasn't under arrest at any time". DSC McDonnell followed this up by saying in her next answer "I didn't tell him that he had to stay there", which contradicts what she had said at T7.47, and referred to at [19.5] above. It was then put that as DSC McDonnell had asked Tyler's dad to "remain" as the appellants support person that would mean the appellant was not free to go and the answer was "well that might be your own interpretation of that". I take that to mean the officer disagrees with the assertion. 7. Next in the transcript at T8.28 was this exchange: Q. Did you tell Tyler he was free to go? A. I would've, yes Q. you would've, but do you remember that? A. Not specifically, no. Q. And it's not on any of the footage? A. No 8. At T11 DSC McDonnell denied that she brought the appellant into the house but that she asked him to come into the house, this being just prior to the search commencing and after the appellant's father had arrived. When asked "did you tell him he didn't have to come into the house?" she answered "No". Was the appellant under arrest? 1. The appellant submitted that in order for an arrest to be affected it is not necessary that the words "you are under arrest" or similar are used and there is no issue in that regard. The Crown accepts that there does not need to be a verbal communication of the arrest, certainly not in those express terms. The appellant noted that by section 139(5)(c) EA, which deals with cautioning of persons, that a reference in subsection 1 to a person under arrest includes a reference to a person in the company of any investigating official (as here) who has been given by the official "reasonable grounds for believing that the person would not be allowed to leave if he or she wished to do so". 2. Reference was also made to a judgment of Justice Mitchell in S and J (1983) 32 SASR 174 at 185 where it was said that an invitation to a police station voluntarily complied with does not amount to a deprivation of liberty. Further it was said "if however the circumstances are such that the words uttered, although in form of an invitation or request, would in the circumstances convey to a reasonable person that he had no genuine choice as to whether to accompany the officer, it becomes incumbent on the officer to make it clear to the suspect he is not under arrest and is free to refuse to accompany him and in the absence of such an invitation the apparent invitation or request may constitute an apprehension". In that case at no stage were the citizens concerned told they were free to go. The appellant relied on Smith v The Queen (1957) 97 CLR 100 for the same proposition, namely that an officer must make clear to a suspect that they are free to go. Smith was a case of an indigenous man of Papua New Guinea charged with murder. He was requested to accompany police to the police station. He was invited to sit down and wait. He was told that he would not go home till he told the truth. Smith was made to wait for hours in the police station and ultimately made admissions to the murder. In Smith in the judgment of Justice Williams at page 129 the discussion is with reference to the Judges Rules. Putting aside the question of their enforceability in relation to Papua New Guinea in that case or elsewhere his Honour discussed what was meant by the term "in custody" in those rules. His honour said that the term is not confined for use to a person who has been arrested after a charge has been laid. Justice Williams said "any person who is taken to a police station under such circumstances that he believes that he must stay there is in the custody of the police" and shortly later "but if the police act so as to make him think that they can detain him he is in their custody". 3. In a similar vein was the judgment of Chief Justice Mason in Van Der Meer v R [1988] HCA 56. In that case four men were apprehended at Mareeba in Queensland. They were brought back to a police station between 10:30 AM and 11 AM in the morning. There were discussions throughout the day. Interviews were recorded and thereafter arrests occurred after midnight. In the course of this there had been an identification parade. The caution as to answering questions occurred it appears at about 8 PM in the evening. The police position was that the men were free to leave at any time before their arrest. They were not told not to leave and were not prevented from leaving but it was plain they were expected to remain in case they were needed for further questioning. They were kept apart. Chief Justice Mason discussed the way the common law balanced the need to allow police freedom of action to investigate crime on the one hand and the need to ensure that a suspect is fairly treated and his right to silence protected on the other. That balance was said to be achieved by permitting police to conduct a general enquiry until the stage is reached when the accusatory stage begins. To define that point was said to be notoriously difficult. His Honour noted the Judges Rules referred to 3 points in time as being this point, being when a police officer had made up his mind to charge a suspect, when a suspect was taken into custody and when a suspect was formally charged. At this point a caution should be given. The point may also be reached when the police have sufficient evidence to justify the charge. The point being delineated is that at which the further investigation will almost certainly be directed to the obtaining of further evidence to support the prosecution. In the discussion of "custody" Mason CJ said he was referring to it as being the equivalent of formal arrest. He then referred to the case of Smith, just discussed and said that Williams J took a rather different view being a reference to when the police act so as to make a person think they can detain him as being in custody. Despite treating that as a point of difference Mason CJ said there is much to be said for the view "that when interrogation takes place at a police station in the circumstances described by Williams J in Smith the police come under an obligation to administer a caution". This was because not only the circumstances of being in the police station but also "because the fact the police create the impression that they are detaining the suspect is in itself some indication that they are contemplating the taking of further steps in relation to him". 4. The argument for the appellant in the present case is that the factors set out at paragraphs 16 and 19 above establish that the appellant was under arrest. The submission is that the appellant was made to think he was required to remain at his home, to wait for his father and not to leave. To adopt the reasoning of Mitchell J from S & J, the argument is the conduct and words of the police here would convey to a reasonable person (and I would add, in the position of the appellant, as known to the police, namely as one suffering an impairment) that he had no genuine choice as to whether to stay or leave. The absence of any affirmative statement that the appellant was free to leave adds to this so as to, on the appellant's argument, result in the appellant being under arrest. If that stage is reached based on the above authority a caution should have been given at common law. Certainly what Justice Mason referred to as the accusatory stage would appear to have been well and truly reached given the application for the search warrant. In any event if that finding is made as to it being in fact the case the appellant was under arrest then Part 9 of LEPRA is activated and the caution is required. 5. The Crown relied upon Wilson v NSW [2010] NSWCA 333 at [59]. This was the basis for the earlier concession of the arrest not needing to be expressly oral. The case of Lavery (1978) 19 SASR 515 was also referred to supporting the view that acceding to a request to go with police even reluctantly is not arrest because the person is free to leave. The Crown concedes however that if there is no real choice about it then it is an arrest. The Crown also referred to O'Donohue v R (1988) 34 ACrimR 397 at 40 where the defendant believed he was under arrest but as nothing was said or done by police it was found he was not as I understood the submission. 6. The Crown continued and submitted quite properly that in order to show that there has been some impropriety or contravention of law so as to activate section 138 the burden is on the appellant. With this in mind emphasis was placed on the absence of any evidence that DSC McDonnell did not say he was free to go. This requires some consideration of the matters set out at [19] above and in particular [19.7]. 7. The Crown relied on the findings of the magistrate who at T18.13 found that the evidence did not get so high as to show that on the balance of probabilities the appellant was detained. The magistrate found the evidence on the balance of probabilities was that he was free to go. In support of that view the magistrate stated "no specific words were ever said to him that he was not free to go and in my view the evidence does not get to the extent where there was a physical presence placed where it would have been implied to a person that they were not free to go". In the lead up to this conclusion at T17.45 through to T18.2 his Honour made reference to some of the matters set out at paragraph 19 above. Those matters were: 1. That the DSC McDonnell said in her evidence that the appellant was free to go. Yet that is clearly a statement of her own opinion or otherwise a conclusion. It is not evidence of some fact supporting that view. 2. That she had asked the appellant to remain. Whilst this is not conclusive it may be consistent with an element of detention depending on how one views the other facts and circumstances surrounding these events. The same can be said when she conceded she had asked the appellant's father to remain which is the next point the magistrate notes. 3. The magistrate then sets out the question "did you tell Tyler that he was free to go?" And records that DSC McDonnell's answer was "I would have" but she indicated she had no specific memory. Given the conclusion reached by the magistrate favourable to the police soon after setting this out, it would appear that the last question and answer was taken in support of the police position. In my view the magistrate was wrong to do so. The style of answer "would have" is a classic indicator of that not being the recollection. That the officer does not recollect is acknowledged by the magistrates' reasons. Yet in the passage in which this evidence emerges, again as the magistrate fairly records, the next answer is to state that she does not specifically remember telling the appellant he was free to go. With respect that must mean that she does not remember telling the appellant he was free to go. The conclusion therefore is that the evidence is that the police officer does not remember telling the appellant he was free to go. Determination as to arrest 1. The appellant is a person who because of health conditions the Crown considered it appropriate for him to have, and arranged for him, a support person. The Law Enforcement (Powers and Responsibilities) Regulation 2016 refers to when a support person may be present. The person who is entitled to have a support person is a person who is a vulnerable person which is a reference to, relevantly in this case, a person with a cognitive impairment. There is no dispute in this case that that is how the appellant is considered. Regulation 31 provides that a support person may be present during an investigative procedure where a detained person or protected suspect is a vulnerable person (underlining added). 2. In this case the elements of that entitlement that are present are that there was an investigative procedure underway by way of the search and that the appellant was a vulnerable person. The Crown in this case has argued that the appellant is not a protected suspect and also argues that he was not detained. This leaves hanging then just why the police would arrange for a support person when the vulnerable person in question namely the appellant is not entitled to one pursuant to the Regulation. Whilst it is possible that the police did this in a demonstration of concern for the rights of the appellant or as a demonstration of their concern that he properly understand what is occurring by way of the search, to my mind it more logically demonstrates that the police considered that the appellant was in a circumstance where he may need some support and thus that he was perhaps at some risk. The evidence is so scant on this that it is impossible to form a clear view of any definitive nature, however at the very least it can be taken into account as being more supportive of the appellant case than the Crown case for it indicates that the appellant may be in some jeopardy. 3. Applying the various principles discussed above as to what may constitute an arrest or being in custody I have come to the conclusion that the appellant was under arrest. Remembering that this is an appeal under section 18 of the Crimes (Appeal and Review) Act I consider that there has been an error made by the magistrate in this regard. This is because in my view he has placed too much emphasis on evidence that he should not have placed any, or any significant, emphasis on, or has misinterpreted it. In this regard in particular is the reliance as discussed above on the evidence of DSC McDonnell that she "would have" told the appellant he was free to leave when in fact she had no memory of doing so. Furthermore, the matters the magistrate does identify as being relied upon for his decision that the onus had not been met by the appellant have been referred to above and with respect none of them (apart from the reference to "asking" the appellant to remain, which in itself is not conclusive, and in all the circumstances, not inconsistent with arrest) constitute evidence supporting the conclusion reached but rather support the opposite conclusion; see at paragraph 26 above. 4. In addition to those matters there are a range of other matters supporting the conclusion urged by the appellant. In my view the combination of the factors set out at paragraphs 16 through to 19 above taken together show that the position is as argued by the appellant. The conclusion at [26.3] above that DSC McDonnell does not remember telling the appellant he was free to go, when considered with those other factors, allows for the inference, which I make, that the appellant was not told that he was free to go. 5. I note that in S and J Mitchell J referred to what may be conveyed to the reasonable man, suggesting an objective test, and that in Smith reference was made to the belief of the person in question. There is no evidence of the appellant as to what he believed his status was, nor were any submissions made in this regard. The conclusion of the appellant being under arrest may be reached based on the matters just referred to and enable the conclusion of arrest to be reached without such evidence. 6. The principles discussed above, particularly from S & J, when applied to these facts, result in the conclusion of the appellant being under arrest. The appellant was told what to do, namely to wait, steps were taken for his protection by use of the support person, itself suggesting that there was no option but to be there for the search. At the time he was told to wait, others had left. I have found that he was not told that he was free to go. The Crown submission referring to Wilson requires a communication of the intent to arrest and an act of arrest or submission. The police conduct outlined at [16]-[19] above and discussed at [26], and the conclusion that the appellant was not told he was free to go satisfy this criteria. 7. To adopt the words of Chief Justice Mason the police here are creating the impression that they are detaining the suspect which in itself is an indication that that line has been reached where a caution should be given and is also an indication of arrest, which is the conclusion just reached. As was said in S and J, in circumstances which convey that a person is under arrest, as here, it is incumbent on the police to make clear he is not under arrest, which did not occur here. Section 138 1. It follows from the above conclusion that Part 9 of LEPRA has not been complied with and a law has been contravened. The evidence that was obtained was the evidence of the password to the phone. It has been obtained in consequence of that contravention. Section 138 requires that such evidence "must" not be admitted "unless the desirability of admitting the evidence outweighs the undesirability of admitting the evidence". Subsection 3 sets out a range of matters that the court must take into account in determining this question. 2. The 15th edition of Odgers Law of Evidence cites the ALRC report as to these matters. The desirability of admitting the evidence is to allow accurate determination of facts in criminal trials and also to punish criminals and deter crime. The undesirability of admitting the evidence is because there is a public interest in minimising the extent to which law-enforcement agencies act outside the scope of their lawful authority. It is viewed as a means of disciplining police illegality, to deter it happening in the future, to protect individual rights, to achieve fairness at trial and to encourage other methods of police investigation as well as promoting executive and judicial legitimacy. 3. There is no dispute that the onus shifts to the party seeking the admission of the evidence to satisfy the court that the desirability of admitting it outweighs the undesirability of admitting it. 4. The Crown made three main points in this regard. The first was that without the evidence the Crown case would fail (though in brief further submissions sought by the Court, this position did not seem to be concrete). The second was to submit that the more serious the offence the greater the public interest in admitting the evidence. Reference was made to Camileri (2007) 68 NSWLR 720. The third was to say that it would be difficult to otherwise get this evidence. 5. The first and second matters are clearly relevant considerations. I consider that a proper consideration of the first point requires consideration of the third. As to the second point there is no doubt that this type of offending is very serious but that is a view tempered by the fact the offender was sentenced by way of two wholly concurrent community correction orders, of three years and two years. 6. The appellant on this aspect argues that the failure to comply with Part 9 of LEPRA, and to then obtain the phone password by questioning the accused was a reckless and serious breach of LEPRA. The breach is made more egregious by the fact of the appellant being a vulnerable person, albeit with a support person with him. It was also submitted that there had not been a proper explanation of the role of the support person to the father. 7. It is necessary to consider section 138 (3). 1. The probative value of the evidence. That is clearly very high and is probative of the alleged filming occurring to go to making out count 1. 2. The importance of the evidence. The importance is its high probative value making out an element of the offence. 3. The nature of the offence. The abuse of children is rightly regarded as a heinous offence. It is a matter which community attitudes seek to eradicate. It may however also be noted that on the scale of offences of this type this is not a gross example. 4. The gravity of the impropriety or contravention. The deprivation of the appellant of his rights was done either knowingly or unknowingly. In either case a young cognitively impaired man has been deprived of the right of every citizen to be properly appraised that he does not need to speak with the police in the circumstances that he found himself. None of the rights pursuant to Part 9 have been provided to the appellant. This extends not only to not being provided with the necessary caution of not needing to say anything but also to not having had the benefit of Part 9 being explained to him and being provided with a summary of it in writing. It is a comprehensive disregarding of the appellant's rights under Part 9. 5. Whether the impropriety or contravention was deliberate or reckless. It was never put to the police officers that this happened deliberately. It would not be open to make such a finding. Viewed most favourably the police carried out their conduct in ignorance of the effect of the manner in which they dealt with the appellant, namely that it was to place him in custody and that therefore, still to their ignorance, that they needed to comply with the provisions of Part 9. On that view in all the circumstances it favours not permitting the evidence with a view to educating law enforcement officers. Viewed less favourably it can be said, as is clear from the evidence, that the police were aware of the appellant's vulnerabilities. I also find that they were aware of the likelihood of him having committed some offence given the nature of the search warrant and yet still did not provide him with his legislated protections. This factor in my view counts heavily against the admission of the evidence. 6. Whether the contravention was contrary to a right recognised by the International covenant on civil and political rights. There were no submissions in this regard though commonly it is submitted that that covenant provides for privacy and that by not providing a caution it could be said that the right to privacy has been infringed. Without there being any evidence in this regard I do not place any reliance on it. 7. Whether any proceeding or other action is likely to be taken in relation to the contravention. There was no evidence in this regard, and there is no reason to think that action of any kind has been taken, be it educational or of discipline. This adds weight to the suggested need for education referred to at [40.5] above. 8. The last of the matters referred to in subsection 3 is to consider the difficulty of obtaining the evidence without the contravention or any impropriety. This is the subject of significant dispute. There is no dispute that the data, including the photo, was extracted at the appellant's home during the search. What is at issue is whether that extraction occurred by using the password or whether that extraction was able to be done without the password. In the evidence the giving of the password was described as being provided with a pattern, that is, to take an example, a person might have a PIN number in the style of an S so that they can scribe an S on their phone with their finger and that is the pattern which is the password, the finger touching the numbers necessary to form the letter S. There is no express evidence as to whether or not the password was used to extract the data; the evidence in chief did not go to this point, and it was not expressly put to the officers in cross examination. For the finding to be made one way or the other requires the making of an inference. In this regard it is significant that the onus shifts to the Crown on the question to show the desirability of admitting the evidence outweighs the undesirability of admitting the evidence. It would favour admitting the evidence if it was established that the password was not used to obtain the photo by way of extracting the data. A further issue was whether, even if the password was used in the data extraction process, could the data nevertheless be extracted without the password, either at the scene of the search or elsewhere. 9. The facts in this regard were that the password was provided by the appellant in a conversation that was not filmed but which could be heard off camera within five minutes of the police commencing the video of the search warrant being executed. The agreed evidence was that the filming started at 9:18 AM so that this information was provided at approximately 9:23 AM. It is at 9:36 AM that Detective Senior Constable Martin commenced an examination of the phone. DSC Martin's evidence as to the examination of the phone is at paragraphs 8, 9 and 10 of his statement of 7 August 2019. In those paragraphs DSC Martin states that he commenced his examination at 9:36 AM, that he used the Cellebrite extraction device to extract the data and on completion of the extraction report he was satisfied that it accurately represented the contents of the handset. When cross-examined at T16 on 22 October 2020 he agreed that he was aware of the pattern type, that he was provided with the password and that at 9.36 AM the phone was downloaded using the Cellebrite extraction device. When asked if that was the normal procedure, he replied "On that day, yes". There was no re-examination, and there was no evidence as to what the normal procedure is on any other day. 10. This evidence does not expressly disclose that the extraction occurred after being provided with the password. The inference that I draw, based on the above timing and the sequencing of the questions just set out, is that the password was used in extracting the data. This is because the password was obtained, it was then provided to DSC Martin, and thereafter the extraction occurred with the Cellebrite extraction device. In support of this view is that if the password was not needed, then why was it sought from the appellant and why was it provided to DSC Martin. Put the other way, the inference is supported by the fact the password was sought by the police from the appellant and then provided to the officer responsible for extraction, and on the balance of probabilities it was after DSC Martin received the password that the extraction occurred. 11. A question emerges as to whether the extraction can occur without the password. Submissions were made by the Crown seemingly to the effect that it could be but perhaps not on-site and perhaps not so simply. The problem with that however is that there is simply not any evidence to this effect, either expressly or sufficient to enable any inference. Commonly in criminal matters with evidence concerning mobile phones reference is made to Cellebrite extraction of data and as a matter of common sense it would appear highly likely that such extractions can occur without knowing the password for otherwise there would be many occasions where it may be expected that the information is not available. That is however a very dangerous and in my view inappropriate way to proceed for at least two reasons. The first is because it is highly speculative and it may well be that for all the Cellebrite extraction evidence that is seen there are many other cases in which there is no data extraction, possibly for want of a password. The second is because this case concerns this particular phone and there may be some characteristic about it that removes it from the general understanding of the position. In the absence of any evidence as to whether the Cellebrite extraction could occur without the password no finding could be made to that effect. The result is the Crown has not established on the balance of probabilities that the Cellebrite extraction can occur without the password. Nor has the Crown established that the password was not used in the extraction that did occur. Favourably to the appellant the inference is made that it was. 12. The consideration of the difficulty of otherwise obtaining the evidence would weigh more favourably towards admitting the evidence if it had been established that the data could have been extracted in any event without the password. As that has not been established the factor does not so favour admission of the evidence. It is also relevant to consider that had the law been complied with and the offender made aware of his rights, the appellant may well have co operated, so that there may well have been a further way to obtain the evidence. This perhaps highlights the disregard of the appellant's rights. Put another way, it was very simple for the police to adhere to the law, rather than to contravene it, and this favours exclusion of the evidence. 13. It was noted above that the consideration asserted by the Crown (although later retreated from somewhat) that the Crown case would fail without the photo, would be impacted on by the question of the difficulty of otherwise obtaining the evidence. My conclusion that this latter point has not been established in a way favourable to the Crown, detracts from the support the former point may have given to the Crown argument. 14. The balance of the matters considered above in my view leads to the conclusion that the desirability of admitting the evidence is outweighed by the undesirability of admitting it. The conclusion therefore follows that the photo will not be admitted. 15. It was argued for the appellant that in the alternative to the argument just determined the appellant was a protected suspect as defined by section 110 EA and therefore was a person who pursuant to section 122 of LEPRA was entitled to the same protections as if they had been placed in custody. The definition of a protected suspect includes that the person has been informed that he or she is entitled to leave at will and also requires establishing the police officer believes there is sufficient evidence that the person has committed the offence. 16. As I have found that the appellant was not a person who had been informed he was entitled to leave at will this definition is not satisfied. In deference to the argument had I not been satisfied that the appellant had not been informed he was entitled to leave there is a risk here for the appellant of falling between two stools because there is simply no evidence of the appellant being informed that he was entitled to leave. It would require accepting the assertion of the officer that he was free to leave but even accepting that as evidence rather than assertion it still means there is no evidence of him being told as much. 17. In any event I agree with the magistrates analysis of the second limb of this definition adverse to the appellant. Whilst there was obviously the reason to believe an offence may have been committed to justify the search warrant the whole purpose was to obtain that sufficient evidence. It is not necessary to decide this given my earlier findings however there seems to be some ambiguity as to how to interpret the word "believes" in the second part of the definition. I would favour the interpretation without needing to decide it that it means a belief based on the available evidence, not a belief that there will be found evidence of the committing of the offence. Section 90 1. At the hearing before the magistrate the appellant argued that the ERISP should not be admitted into evidence on the basis that it was unfair within the terms of section 90 EA. No argument based on section 90 was made in relation to the photo. As with the protected suspect argument concerning the photo the findings as to section 138 make it unnecessary to decide. My view however is that in light of my findings above as to the appellant being under arrest and not being told that he could leave and not being provided with his Part 9 rights then, subject to one matter, having regard to those circumstances it would be unfair to the appellant to use the evidence. 2. The one matter just referred to is whether providing the password is an admission. The definition of admission in the dictionary to the Evidence Act includes a representation that is adverse to the person's interest in the outcome of the proceeding. In my view the representation as to the password is adverse to the appellant's interest in the outcome of the proceeding because it in effect provided a key piece of evidence proving the events namely the photo. 3. There is also the issue of whether the appellant should be entitled to rely on the section 90 EA argument in respect of the photo when that argument was not made before the magistrate. The appellant did not seek to lead any further evidence to make good that argument and nor was there any suggestion by the Crown that had it known that argument would be made it would have taken some other evidentiary or preparatory step in the presentation of the Crown case. In my view in those circumstances it would be in the interests of justice to allow the argument to be had. 4. In the brief further submissions that were sought by the Court the Crown indicated that if the evidence of the photo obtained as a consequence of a contravention of an Australian law was not admitted, it may still be that the Crown case could be established through relying on the ERISP. Whether that is so depends in part on whether that interview contains admissible evidence of the appellant proving the photo without the fact of the photo arising by reason of the police making reference to the photo, as the police knowledge of it comes from the established contravention. There was no reference in submissions to questions and answers having this effect. 5. The simplest way of dealing with this is to determine the argument concerning the admissibility of the ERISP. The basis of the appellant's objection was that the interview was unfair within the meaning of section 90 predominantly due to matters concerning the support person. Those matters were that the support person had not been properly appraised by the police as to what his role was, that he did not fulfil his role in a way that was in the interests of the appellant and that he was a person who, as the father of the appellant, had a relationship with the appellant that was problematic if not violent. 6. Section 90 is in the following terms: 90 DISCRETION TO EXCLUDE ADMISSIONS In a criminal proceeding, the court may refuse to admit evidence of an admission, or refuse to admit the evidence to prove a particular fact, if-- (a) the evidence is adduced by the prosecution, and (b) having regard to the circumstances in which the admission was made, it would be unfair to a defendant to use the evidence. 1. The submissions of the appellant in this regard focused on the conduct of the interview that is the means by which the admissions were obtained. In early cases there were suggestions that section 90 was not dealing with that kind of unfairness but rather the fairness of the use of the admission at trial. Later cases showed that the relevant unfairness was broader than this. For present purposes it is relevant to consider the manner in which the admissions were obtained and the reliability of those admissions. In this a significant consideration is the conduct of the law enforcement officers. The decision of R v Suckling [1999] NSWCCA 36 supports this approach as does the discussion at [EA 90.60] of Odgers, 15th Edition. 2. Without being exhaustive but at the same time doing justice to the submissions of the appellant, the following question and answers were relied upon by the appellant in support of the argument that it would be unfair to use the evidence obtained from the ERISP. In passing I would note that expressing it that way shows the point of Suckling. It is the use of the evidence being unfair which is the focus of the section not that the interview was unfair though there is clearly an overlap in those two approaches. The following questions and answers were highlighted: 1. There was no issue that the Part 9 rights were afforded to the appellant at the commencement of the interview. This had been done by the custody manager. At Q7 the appellant is asked if he would like to exercise any of those rights to which he replies "Mm, none of that, uh, not sure to be honest" and "I honestly don't know". The appellant's father then says words to the effect that it is what they just spoke with the duty sergeant and the appellant says "Yep". Then at Q28 the appellant agrees that his rights had been explained earlier. I would note this occurs after Q27 when the appellant was asked "and are you comfortable with telling that to me" in reference to whether he did or did not understand a question and again he replied in the affirmative. I note also questions 32 and 34 and their answers show not only that the appellant understood his rights but they also show the officer acting in an entirely appropriate way, indeed I would say with some care and concern for the appellant. 2. At Q367 the appellant is asked if he is all right and answers no. As I understood the appellant's submission the argument was that to continue the interview when at various times the appellant said he was not all right shows that it would be unfair to use this evidence. Yet the immediate following questions to Q367 ask if the appellant would like a glass of water or "would you like a moment" and a further enquiry as to whether he is "all right". He declines those things offered to him. 3. The appellant answers Q 215 by saying "I'm pretty sure if my dad wasn't here, I'm pretty sure if you guys weren't here my dad would probably wring my neck" and then says "I'm not joking by the way". This type of remark occurs on more than one occasion. Yet I would note that the appellant has a manner of speaking which is dramatic. An example of this is the answers to questions 221 and 222 Which were "yes, I took the photo. Okay is that what you want me to say?" And "yeah, you want to know the truth. You want to prosecute me and charge me. You just want me to die in hell, die in prison". In passing I would note that the officer again acted very appropriately by saying that is not what he wanted. The appellant followed this by saying "that's what that's what all of you cops want. I'm, I'm at a point where I would say shoot me. Go ahead, just shoot me". And "rid the world of people of me" and again the police response is "that's not gonna happen Tyler" and "I just want to know what happened that day that's all". It is relevant to note that this extravagant way of speaking occurs earlier in the interview also for example the answer to Q95 is "because I am in the words of one person, a six, a sick dis, uh, a, excuse me, a sick twisted bastard that deserves to rot in hell". 4. Commencing at Q180 questions are asked about a photograph downloaded off the appellants phone which would appear to be the photo the subject of the section 138 objection. The photo was shown to the appellant and he was asked numerous questions about it and then at Q 211 he agreed that there were quite a number of photos taken of lots of little girls on that day. When asked why is that he answered at Q 212 "I don't know. I don't freaking know. I just want to get this crap over with". The following then occurs: Q 213: OK. The next pho, there is a series of photos that were taken this day. The next photo…… A: Yeah, I don't want to see it. I don't. Mr Wake: you have to. Q214: Why is that? A: Because it's freaking damning to me. This is tearing me apart. It's make me more depressed than it already is. This is then followed by the answer to question 215 referred to above. 1. A major plank of the appellant's argument in this regard was that the support person was not performing the role of the support person. There was reference to the support person not being given the summary referred to in s122, however there was no submission that somehow invalidated the process, beyond being relied on to support the assertion that the support person did not understand their role. There was no suggestion the role had not been orally explained to Mr Wake. 2. Regulation 34 of the LEPRA regulations sets out the role of the support person during an interview, and is in the following terms: 34 ROLE OF SUPPORT PERSONS DURING INTERVIEW (1) The custody manager for a detained person or protected suspect who is a vulnerable person is to inform any support person for the detained person or protected suspect that the support person is not restricted to acting merely as an observer during an interview of the detained person or protected suspect and may, among other things-- (a) assist and support the detained person or protected suspect, and (b) observe whether or not the interview is being conducted properly and fairly, and (c) identify communication problems with the detained person or protected suspect. (2) The custody manager is to give a copy of the summary referred to in section 122(1)(b) of the Act, to-- (a) the support person, and (b) any interpreter for the detained person or protected suspect who attends in person at the place of detention. (3) If the support person or the detained person's or protected suspect's legal representative is present during an interview of the detained person or protected suspect, the support person or legal representative is to be given an opportunity to read and sign any written interview record. (4) Any refusal by the support person or legal practitioner to sign a written interview record when given the opportunity to do so must itself be recorded. 1. The provisions of regulation 34(1) are clearly not exhaustive, however the nature of the complaints made by the appellant fit within roles set out in that subregulation. In my view, the interview was conducted properly and fairly for the reasons indicated above when addressing particular questions and answers from the interview. The appellant was clearly aware of his rights and clearly wanted to take part in the interview, even though he expressly did not enjoy it. Further apart from the rather heightened manner of expression used by the appellant there were no issues concerning communication and that heightened form of communication did not in itself relevantly pose any problems. The submission boils down to the support person allegedly not assisting and supporting the appellant. I am not satisfied that submission has been made out. The reliance on question 215 has some superficial attraction but viewed in the overall context of the interview including the willingness of the appellant to partake in it and that the photos that were about to be shown to the appellant (at Q215) are not photos the subject of any charge my view is that what was said by the support person there was indeed supportive of what it was that the appellant had chosen to do. 2. The remaining aspect is the purported fear factor of the support person. Beyond the actual expressions of the appellant, there is no evidence of any such conduct by the support person towards him. There was no reference to any part of the interview where it was said that the appellant had asked for the support person to be replaced. In my view the concerns raised by the appellant to the effect of his father wringing his neck need to be viewed in the context of his heightened manner of expression. 3. The conclusion I reach is that the objection to the ERISP based on section 90 fails. Bearing in mind this is a section 18 appeal I would note for completeness that no error of the Magistrate has been highlighted with any degree of clarity. The magistrate's reasons in this regard are at T21 to T23. The substance of that reasoning reflects the reasoning just set out and I do not consider there is any error there nor do I consider it to be the wrong decision. 4. That conclusion does not necessarily mean that the ERISP is admissible. The submission of the appellant is that if the photo was not admitted into evidence then the whole of the ERISP is tainted or at least so much of it as goes to support count 1, and if count 2 is founded on the taking of that photo then presumably also count 2. The logic of this is that the reference throughout the ERISP to the photo is only able to occur because of the obtaining of the evidence by contravening an Australian law so that the further evidence obtained in the ERISP has been obtained in consequence of that contravention. With respect that submission should be accepted if its premise is correct. 5. In these circumstances, the rulings will be made and the matter will be adjourned to allow the Crown an opportunity to consider whether in the Crown's view there is within the ERISP evidence sufficient to make out the charge. That is, evidence obtained in the ERISP without the Crown relying on having obtained the photo from the phone. Rulings and orders 1. The rulings I make are as follows: 1. The tender of the photo is rejected. 2. The ERISP will be admitted to the extent that the evidence from the appellant contained therein was gathered without connection to the photo. 3. I note the various rulings to specific parts of the ERISP by the magistrate were not challenged, and those rulings remain, subject to the ruling at [66.2]. 4. I direct the Crown to notify the appellant in writing within 14 days as to whether the Crown considers the remaining evidence allows the Crown case to be maintained and if the Crown does take that view the Crown is to identify in writing served upon the appellant those parts of the ERISP relied on together with references to any other evidence supporting that view. 5. The matter is adjourned and on the next date depending on the Crown's position final orders will be made disposing of the matter by way of dismissing the charges or alternatively to permit further submissions as to the effect of the above rulings. ********** [1] Pars [5]-[9] of this judgment are taken from Klewer v R [2020] NSWDC DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 07 July 2021