District Court New South Wales Medium Neutral Citation: R v Fagundez (No 1) [2023] NSWDC 508 Hearing dates: 20 November 2023 Decision date: 20 November 2023 Jurisdiction: Criminal Before: Newlinds SC DCJ Decision: Order that the information obtained as result of seizure of the second mobile phone is inadmissible in the trial. Catchwords: CRIME – Admissibility of material seized by the police – Illegal seizure – improperly obtained evidence Legislation Cited: Evidence Act 1995, ss 138(1), 138(3), Law Enforcement (Powers and Responsibilities) Act 2002 ss 21, 27 (1), 28A Category: Procedural rulings Parties: Rex (Crown) Carlos Alberto Fagundez (Accused) Representation: Counsel: S Richards (Crown) A Bhasin (Accused) Solicitors: Office of the Director of Public Prosecutions (Crown) Clover Legal (Accused) File Number(s): 2021/126538 Publication restriction: None JUDGMENT: ex tempore 1. HIS HONOUR: The trial of the accused commenced today before me. 2. There are two counts on the indictment, the first being that on 29 January 2020 the accused did possess child abuse material being photographic images stored on a mobile phone and the second being that on 6 May 2021 the accused to possess child abuse material being a video stored on a mobile phone. 3. The particulars of the charges is that the relevant images and video were stored on different mobile phones. 4. This application for the exclusion of evidence sought to be tendered by the Crown is in relation to material found colloquially "on", what has been described as the second mobile phone, that is, the phone seized on the arrest of the Accused on 6 May 2021. Access to that mobile phone was obtained by the arresting police. 5. On this application there has been tendered the video and sound from the body worn camera of one of the arresting officers together with a transcript of what was said between the police and the accused at that time. 6. In essence what happened was this. 7. The police knocked at the door of the accused's premises. He opened the door. The police immediately told the accuse he was under arrest. I find as a matter of law that from that point on the accused was under arrest. The police then found their way into the accused's unit and whilst he was putting his shoes on, brushing his teeth and doing other preliminary matters to be taken to the police station, they asked him on a number of occasions whether he had "his phone". For example at question 26 of the transcript the following takes place: "OIC Alright so...keys...and have you got your phone? ..." At Q. 40 OIC: Um so maybe something warm to put on...it's raining outside as well and where's your phone? Have you got a mobile phone? ACCUSED: Yes I do. [Picks up phone and places in pocket] OIC: Will have to just hold on to your property um... OFFICER 2: Yeah. What have you got in your pockets? Because you're under arrest mate so you can't...we're taking off you and you'll get it back after you're in custody. So yeah probably take that off as well. You either take them off now or they'll be... OIC: Mmm...have you got other pants? Accused: Yeah. Can I put something else on? OIC: Yep, sorry, also your phone in your pocket that's going to have to come out... Accused: Mmm. … At 73 Officer 2: Is there anything in the pockets...can I... Accused: I dunno. Officer 2: I'll search 'em(?) first. OIC: Something in the back there I think. Officer 2: I'll search 'em first... OIC: Where's the phone? Accused: I've got it. OIC: Yeah. Yeah where's your phone? Accused: Yeah I've got it there. OIC: Where? Accused: I've got it with me yeah. OIC: Yeah, can you hand it to me? Accused: Yeah". 1. As is probably clear enough from what I have set out what happened was the accused was originally asked whether he had a phone. He said he had one. He was told to find his phone. He then found his phone and put it in his pocket. 2. Later on in the exchange, when he was changing some clothes in the bathroom at the request of the police, he took the phone out of his pocket and placed it on the cistern of the toilet which is when the police again asked him where was the phone? He indicated it was on the toilet. They then asked him to pick it up and hand it to him which he did. 3. The question before me is whether the phone was obtained lawfully by the police? 4. I have been taken to various provisions of the Law Enforcement (Powers and Responsibilities) Act 2002 (LEPRA), in particular the following. 5. Section 21 which provides by subs (2)(b): "2. A police officer may seize and detain …. (b) all or a part of a thing that the police officer suspects on reasonable grounds may provide evidence of the commission of a relevant offence..." 1. Section 28A which provides: "(1) A police officer may search a person who is in lawful custody after arrest and seize and detain anything found on that search". 1. Section 27(1) which provides: "(1)A police officer who arrests a person for an offence or under a warrant or who is present at the arrest may search the person at or after the time of arrest if the officer suspects on reasonable grounds that it is prudent to do so in order to ascertain whether the person is carrying anything. … (d) That is a thing that will provide evidence of the commission of an offence…". 1. Dealing with each of those sources of power it seems to me that the Crown has failed to make out the exercise of any power conferred on the police pursuant to s 21. That is because there is simply no evidence at all before me that the police suspected on reasonable (or indeed unreasonable grounds) that the phone might provide evidence of the commission of a relevant offence. 2. The police officers have not given evidence on the voire dire. That was a deliberate forensic decision by the Crown and in those circumstances, especially in light of the provision of s 202 of the LEPRA which provides that, a police officer is exercising a power, one of the matters that the police officer needs to identify to the relevant person is the reason for the exercise of the power. That did not occur here. 3. So what I have before me is a police officer who does not (and in contravention of s 202) provide any reason for why the phone is being seized and then does not give any evidence on this application as to whether they suspected anything. In the circumstances, I think I can safely rule out a proper exercise of the power conferred under s 21. 4. I then move to the power created by s 27. This argument fails in the first instance on the same grounds because I am not satisfied that the officer suspected on reasonable grounds that it was prudent to search the accused. Nor in the circumstances I am satisfied that any such search was for the purpose of ascertaining whether the person, (the accused) was carrying anything. 5. In this case, in relation to the phone the officers knew that the accused was carrying the phone because they had asked him to pick up the phone in their presence. I therefore find that the seizure of the phone was not pursuant to the power created by s 27. 6. Finally I come to the power conferred by s 28A. 7. Mr Bhasin for the Accused has taken me to the second reading speech when this provision, amongst others, was introduced into the legislation in the Legislative Assembly on 17 September 2022 when the then Attorney General said this about what became s 28A. "This provision addresses concerns about safety of police and others in custody and is a justifiable law enforcement power. The search power set out are powers that may be exercised at or after the time of arrest. These powers should be distinguished from those set out in clause 24 (which becomes s 28A) which sets out the search powers that may be exercised by a police officer after a person has been arrested and taken into custody for example at a police station. Division 3 of this part consolidates the existing police power to search for knives and other dangerous implements..." 1. In my view, it is clear that the intention of the legislation gleaned from the second reading speech but also by absence of the "reasonable grounds to suspect" proviso that is found in the other powers, the purpose of the power conferred by s 28A is not the obtaining of relevant evidence from an accused, but is rather for the protection of police and other people whom an arrested person might come in contact with so as to give police the power to search them to make sure they are not carrying dangerous implements. 2. That was not the purpose for which this search and seizure occurred, and I therefore find that he cannot be justified by the power conferred under s 28A. 3. For those reasons, I have concluded that the phone was obtained illegally by the police. 4. The accused relies upon s 138 of the Evidence Act 1995 which prima facie excludes improperly or illegally obtained evidence. 5. In this case the evidence is taken to have been at least improperly obtained because of the failure of the police to provide the accused with the warning that he was not obliged, once arrested, to say or do anything at the request of the police. 6. No such warning was given by the police to the accused before they asked him to pick up the phone and hand it to them. Accordingly, I can comfortably conclude that the evidence was, upon that basis alone, improperly obtained. 7. Accordingly, I have concluded that the evidence was both improperly and illegally obtained. 8. That of course does not mean that it is automatically excluded from evidence. There is then a evaluative judgment to be had with the starting point that the evidence is excluded from evidence unless I am satisfied that the desirability of admitting the evidence outweighs the undesirability of admitting the evidence that has been obtained in the way in which the evidence was obtained (the Evidence Act s 138(1)). 9. There is a non-exhaustive shopping list of matters to be taken into account set out in s 138(3) of the Evidence Act which starts with a consideration of the probative value of the evidence and the importance of the evidence in the proceedings and includes the gravity of the impropriety or contravention and whether the impropriety or contravention was deliberate or reckless. 10. Firstly dealing with the probative value of the evidence. 11. On the evidence before me, whilst I can see that the evidence is important to the Crown in the sense that without it, it is obvious that count 2 would have to fail, but I am not satisfied that it is in fact particularly probative evidence at all. 12. The evidence of the expert to be relied on, it seems to me, goes no higher than proving that at some point the mobile phone might have accessed the website upon which the particular material was stored. As I read the expert report, it does not prove on its own that the particular video was ever accessed by the mobile phone or that a person with access to the mobile phone ever viewed the video. It does prove that that is a possibility but I do not think that it rises any higher than that and certainly does not prove that fact on the balance of probabilities let alone beyond reasonable doubt. It is probative of the existence of the phone and is the basis for the forensic evidence but on its own is not particularly probative of anything. 13. Of course the evidence should not be considered on its own but has to be assessed in the context of all the other evidence in the case but, on what I know about the case, it is going to be a difficult task anyway for the Crown to link up that possibility with other evidence so as to make a submission that count 2 has been proved beyond reasonable doubt. 14. That is not really the question for me on this application. The question for me on this application is to make an assessment as to the probative value of this evidence. In my view whilst I do not make a finding that it has no relevance at all, I really do not think its probative value is particularly great. 15. Against that, I weigh up the nature of the impropriety and illegality that I have identified. In my assessment both are reasonably egregious breaches by the police of the law. I can only infer that the police were aware of the law and therefore am very tempted to accept the submission made on behalf of the accused that the breaches were a deliberate breach of the criminal law by the police officers. However, I do not think I need to go that far and in the absence of the police officers having given any evidence I do not go that far but I do find that there was a reckless disregard by the police as to the rights of the accused and a reckless disregard as to the limitations of the power of search and seizure. 16. When I weigh all those matters together, I have come to the conclusion that the prima facie provision established by the Evidence Act that the evidence is not to be admitted has not been displaced. 17. Accordingly, I rule that the information that has been obtained as a result of the seizure of the second mobile phone is inadmissible in the trial. ********** 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: 28 November 2023