JAKE FRANK THOMAS v THE KING [2024] SASCA 51

On Appeal from DISTRICT COURT OF SOUTH AUSTRALIA (HER HONOUR JUDGE TRACEY) [2023] SADC 93 Appellant: JAKE FRANK THOMAS Counsel: MR P DAWES - Solicitor: MATTHEWS LAWYERS Respondent: THE KING Counsel: MS L DUONG WITH MR G DUDZINSKI - Solicitor: DIRECTOR OF PUBLIC PROSECUTIONS (SA) Hearing Date/s: 20/02/2024 File No/s: SCCRM-23-041533; SCCRM-23-026637 A SUPREME COURT OF SOUTH AUSTRALIA (Court of Appeal: Criminal) DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment. The onus remains on any person using material in the judgment 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 in which it was generated. 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. -- 1 of 16 -- 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 judge erred in concluding that the appellant had an informed choice not to provide his PIN in circumstances where he was under de facto arrest, not given his arrest rights and did not have access to legal advice regarding the privilege against self-incrimination. Held (by the Court), granting leave to appeal on ground one, allowing the appeal, and setting aside the convictions: 1. It is not always necessary to give a word-specific caution regarding the privilege against self- incrimination on a request that a suspect disclose a PIN. 2. In the circumstances of the present case, the police having given a general caution at the outset of the interview, they were not required to caution the appellant specifically before requesting his PIN. 3. At the time the appellant gave access to his phone, he was subject to de facto arrest, the police having communicated to him that he was not free to go home for the night. That being the case, he was entitled to be advised of his rights under s 79A of the Summary Offences Act 1953 (SA). 4. Had the appellant been able to access a solicitor before being asked any further questions, a solicitor would likely have advised of his right to refuse to provide the PIN and that he should not provide it. The unfairness to the appellant, consequent on the failure to give him his arrest rights, and in circumstances where police would not otherwise have been able to access the contents of the appellant’s mobile phone, tips the balance in favour of the exclusion of the evidence obtained therefrom. 5. The appeal against sentence is necessarily dismissed. Criminal Law Consolidation Act 1935 (SA) ss 63, 63A(1)(a); Evidence Act 1929 (SA) s 34R(1); Summary Offences Act 1953 (SA) (SA) s 68, referred to. Bunning v Cross (1978) 141 CLR 54; R v Swaffield (1998) 192 CLR 159; Cleland v The Queen (1982) 151 CLR 1; Ridgeway v The Queen (1995) 184 CLR 19; R v Lobban (2000) 77 SASR 24; Question of Law Reserved (No 1 of 1998) (1998) 70 SASR 281; Director of Public Prosecutions v Moore (2003) 6 VR 430; R v Rockford (2015) 122 SASR 391, discussed. Middlin-Hannah v The Queen (2020) 137 SASR 366; R v Wilson (1987) 47 SASR 287; R v Andrews & Ors [2005] SASC 15; Young v The King [2024] SASCA 47, considered. -- 2 of 16 -- THOMAS v THE KING [2024] SASCA 51 Court of Appeal – Criminal: Livesey P, Doyle and Bleby JJA 1 THE COURT: This is an 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. On 12 October 2023, the judge sentenced the appellant to a total head sentence of two years and eight months’ imprisonment. She fixed a non-parole period of 18 months. The appeal against conviction 2 The amended grounds of appeal asserted four grounds, two of which the appellant has since abandoned. The issues arising on the remaining grounds are: • whether police were required to caution the appellant specifically before requesting the PIN of his mobile phone (Ground 1.1); • whether the judge erred in concluding that the appellant had an informed choice not to provide his PIN in circumstances where the appellant was found to be under de facto arrest, was not given his arrest rights and did not have legal advice regarding the privilege against self-incrimination (Ground 1.2); and • whether the judge erred in failing to direct herself in accordance with s 34R(1) of the Evidence Act 1929 (SA) (‘Evidence Act’) with respect to evidence of the appellant’s uncharged possession and dissemination of CEM (Ground 4). 3 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 4 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. 5 Detective Brevet Sergeant McClean (‘DBS McClean’) arrived at the scene at 3:25 am. SC Matthews advised him of the matters referred to above. 6 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 -- 3 of 16 -- [2024] SASCA 51 The Court 2 officers, who moved a short distance away. SC Matthews video-recorded the interview that followed. 7 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: Q So before we go any further I’m going to ask you some further questions. A Okay. Q You’re not obliged to answer them… A Yeah. Q …but anything you say is being recorded on video… A Okay, so it’s being recorded? Q Yeah. A Okay. Q …and may be used in evidence. A Okay? Q Do you understand that? A Yes. 8 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. 9 At 3:50 am, the appellant asked, ‘Is there anything else you want to ask?’ The following exchange then occurred: Q Yeah, yeah, plenty, Jake. A Um, do you want me to come to your station tomorrow? What’s the go? Q No, no, no, no, mate, we’re going to deal with this now. A Okay. Q Okay? -- 4 of 16 -- [2024] SASCA 51 The Court 3 A Alright. Q So I need you to hand me your phone over. A Yeah. Q Where’s your car at the moment? A At the station. Q So we’re going to search your car. A Okay. Q So… A Hey? Q Just hand… A Hand the phone over? Q Yeah. MATTHEWS Q What’s the access code to get in the phone? A Um, I can deactivate it if you want. Q No. MCCLEAN Q No, no, no, no. MATTHEWS Q Just tell us the access code please. A Can you… Actually, sorry, if you, if you go out of it. I did it on an old friend’s name ‘cause, um… Q What, what, just, just stop. A I, I don’t, I don’t know what the numbers are. That’s my problem. I don’t know off… Q Show me how you unlock it. A Yeah, 047479.1 MCCLEAN 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. -- 5 of 16 -- [2024] SASCA 51 The Court 4 Q 047479. A Yeah. 10 The last part of this exchange records the appellant showing the officers how to unlock the phone and the officers noting the PIN. From this point, the appellant did not receive his phone back from the officers. At 3:53 am, DBS McClean seized the phone. The appellant accepted at trial, and accepts on appeal, that the seizure of the phone was done lawfully pursuant to the power in s 68 of the Summary Offences Act 1953 (SA). 11 Following the seizure of the phone, a further exchange occurred in which DBS McClean expressed his disbelief in the appellant’s denials as to starting the fire. He then arrested the appellant at 3:54 am. He advised the appellant of his arrest rights. Having advised the appellant of his entitlement to have a solicitor, relative or friend present during any interrogation or investigation while he remained in custody, he asked the appellant if he wished to have somebody present. The appellant said yes. When asked whom he would like, the appellant asked if it was possible to get a solicitor. A discussion ensued about the inability to obtain a solicitor at that time of the morning. The appellant asked if he could call his mum in the meantime. He was told that he could call a solicitor from the police station as well, if he wished. 12 The police took the appellant to a police station and formally charged him with arson. They later discontinued that charge. Prior to that, however, when conducting a more thorough inspection of the appellant’s phone, police discovered evidence of possession and dissemination of CEM on the appellant’s phone. On 29 April 2021, the appellant was arrested in respect of the CEM related charges. The voir dire hearing 13 The appellant contended on the voir dire that the circumstances in which the police obtained the PIN to his mobile phone should lead to the discretionary exclusion of the evidence gained by use of the PIN. He relied on the fact that he had not been given any specific caution about not being obliged to provide the PIN. He further submitted that, at the relevant time, he was in de facto custody and was not given any of his arrest rights. 14 The prosecution conceded that the interrogation of the appellant’s mobile phone could not have occurred, at the time that the CEM was discovered, without police knowledge of the PIN.2 15 DBS McClean gave evidence that in circumstances where the person was a suspect, and a caution had been given, his understanding at the time was that it was appropriate to request the PIN. He accepted that if there had been a break in the conversation, it would be appropriate to issue another caution before resuming the 2 Compare Middlin-Hannah v The Queen (2020) 137 SASR 366; [2020] SASCFC 112. -- 6 of 16 -- [2024] SASCA 51 The Court 5 interview. He also accepted that if a suspect had not been cautioned, a request for a PIN would then require a caution. 16 As to SC Matthews’s statement, ‘Just tell us the access code please’, he understood that to be a question, not a direction. He also said that he had the impression that the appellant was acting voluntarily when he gave the PIN, as he was very willing to cooperate and eager to assist. 17 In cross-examination on the voir dire, DBS McClean maintained that it was sufficient in his view that the appellant had been cautioned from the outset. He said that he had not been given any training to the effect that it would be ‘normal procedure’ to administer an additional caution specifically on a request for a PIN. 18 SC Matthews did not give evidence on the voir dire. Two affidavits he prepared were tendered. These included a statement that he understood that there was no law compelling a person to provide a PIN to their mobile telephone, but that doing so may reduce the amount of time the phone is kept in police property and may assist police in the investigation of any offence. 19 The appellant gave evidence on the voir dire. He said that he understood from the caution that he was not obliged to answer questions generally. However, he said that the way that this request was put to him made him feel that he was not being given an option. He said: Because it wasn’t a question. He’s not asking me to – he’s – as I said, to me is that he hasn’t asked if I can provide it, he’s asking – he’s said ‘What’s the access code’. It’s – he was demanding the access code. 20 The appellant reiterated that this was not a question the way that previous questions were asked. Based on the way it was said, this was SC Matthews telling him that he had to give him the access code. 21 On ruling on the voir dire, the trial judge characterised the relevant question as ‘whether the appellant was led to believe that he had no alternative but to provide the PIN to police’. In this regard she referred to the statement by Kourakis CJ in Middlin-Hannah v The Queen:3 I accept that there are grounds on which it could be concluded that Mr Middlin-Hannah did not comprehend that he was entitled to refuse to facilitate access to his phone. The giving of a caution would have afforded him an informed choice as to whether to waive his privilege against self-incrimination. 22 The judge accepted that the appellant was not accustomed to police procedures. However, she continued:4 He was no doubt stressed and nervous, particularly given he admitted to DBS McClean that he had lied. His demeanour and responses to questions did not however demonstrate that 3 (2020) 137 SASR 366 at [95]. 4 Reasons for Ruling, 25 May 2023 at [66]. -- 7 of 16 -- [2024] SASCA 51 The Court 6 he was confused as to what was happening or what was being asked of him. I found DBS McClean to be a careful and impressive witness who did not try and portray his conduct in a more favourable light. He conceded he was ‘grumpy’ at the time he was speaking to Mr Thomas at the scene, and he was certainly direct and challenged Mr Thomas with respect to the answers that Mr Thomas gave. It cannot however be said that he was overbearing such that Mr Thomas was confused or bullied into answering any of the questions he was asked. 23 The judge found that against the background of the caution that was provided, which the appellant had accepted he understood, and taking into account the circumstances in which the questioning developed, it could not be said that the appellant genuinely held a belief that he had no alternative other than to provide his PIN. She placed emphasis on the appellant’s response to the first request, which did take the form of a question, despite the appellant’s characterisation of it. This was where, in response to the question, ‘What’s the access code to get in the phone?’ the appellant said: A Um, I can deactivate it if you want. 24 The judge accepted that the request then turned into more of a demand, but considered that this was in response to the offer to deactivate the phone. She observed that the response needed to be seen in a context where the officers were ‘no doubt’ concerned that the appellant’s interference with or control of the phone was undesirable and potentially harmful to the investigation. 25 The judge concluded that the appellant, having been cautioned properly when DBS McClean considered him to be a suspect, was given an informed choice to as to whether to answer the request for the PIN. She held that his offer to deactivate the phone when asked for the PIN clearly evidenced his willingness to comply.5 26 However, the judge also found that when the appellant asked whether police wanted him to come to the station tomorrow and received the answer, ‘No, no, no, no, mate, we’re going to deal with this now’, that response constituted a direction that he was not free to leave. It followed that the appellant was entitled to be given his arrest rights. The judge accepted that this may not have incorporated a specific caution with respect to his PIN. However, he would have been advised of his right with respect to a solicitor, which appeared attractive to him when he was formally arrested. Advice from a solicitor ‘may have’ included his right to refuse to provide the PIN.6 27 The judge then turned to whether it was appropriate to admit the evidence at trial in the exercise of her discretion, despite the appellant not having been cautioned when under de facto arrest and in the event that she was wrong in finding that the appellant had an informed choice. She said:7 5 Reasons for Ruling, 25 May 2023 at [70]. 6 Reasons for Ruling, 25 May 2023 at [71]. 7 Reasons for Ruling, 25 May 2023 at [73]. -- 8 of 16 -- [2024] SASCA 51 The Court 7 I accept that there was here no deliberate conduct on the part of police officers to circumvent the law. There was no conscious impropriety or a reckless disregard for police obligations. As I have said, the willingness and, indeed the enthusiasm shown by Mr Thomas in answering police questions and his apparent desire to be helpful to them, was no doubt a contributing factor in the way in which the interview and the events unfolded. It is of note that after his arrest rights were given, Mr Thomas continued to answer police questions and ultimately decided to proceed just as willingly without having received the legal advice that was offered to him. 28 The judge also noted that the provision of the PIN did not affect the cogency of the evidence contained on the phone. Having further regard to the seriousness of the offences charged, and the consequences of excluding the evidence of the contents of the phone, she dismissed the application to exclude the evidence.8 Were police obliged to give a specific caution before requesting the PIN? 29 In Middlin-Hannah v The Queen,9 police seized the appellant’s mobile phone, which they suspected contained evidence of offending. One of the police officers held a general search warrant. Police asked for the passcode to the phone to allow them to review its contents. The appellant complied. Police had not cautioned the appellant at all. The Full Court held that police should have cautioned the appellant, the investigation having reached the accusatory stage. None of the judgments suggested that a caution in anything other than general terms was required, but that was in circumstances where no caution had been given at all.10 30 Kourakis CJ made the following observations:11 There is a final issue which should be noticed arising out of DBS Napper’s request for the PIN. On the finding I would make - that DBS Napper was entitled to seize the smartphone - there was no impropriety in giving Mr Middlin-Hannah the option of providing the PIN to allow access to his smartphone. Indeed, there is much utility in adopting that procedure. For those persons who are wrongly suspected, the option of avoiding the seizure of their property, with all the inconvenience that entails, is a useful one. The issue is now most likely to arise when seizing electronic devices, but the same principle would apply to the safe or locked filing cabinet of earlier times. An occupant may choose to avoid the potentially destructive forced opening, or removal, of a cabinet from his or her home by providing the key or code to open it. As long as the power to seize is not deliberately misrepresented, the giving of an option serves the public interest. However, I would make one important qualification to the proposition just stated. The privilege against self-incrimination is not limited to the right to refuse to answer questions. The privilege extends to the handing over of documents which may incriminate. It may undermine that privilege if a police officer were to seek assistance from a suspect to access his or her documents, which the police officer believes may contain incriminatory evidence, without informing the suspect of his or her privilege not to facilitate the seizure of that documentary material if it may be incriminating. Of course, a failure to warn is only legally significant if the request is made at a time, and in circumstances, which would so 8 Reasons for Ruling, 25 May 2023 at [75]. 9 (2020) 137 SASR 366. 10 Middlin-Hannah v The Queen (2020) 137 SASR 366 at [149] (Livesey J); [176]-[177] (Bleby J); see also at [95] (Kourakis CJ expressing a concurring view but not deciding). 11 Middlin-Hannah v The Queen (2020) 137 SASR 366 at [85]-[86]. -- 9 of 16 -- [2024] SASCA 51 The Court 8 compromise the privilege that it would cause forensic unfairness in a subsequent criminal trial. 31 In the present case, the appellant relied on the second of these paragraphs to submit that there was, or should be understood to be, a delineation between a caution that merely informs a suspect that they are not obliged to answer questions on the one hand, and a caution that specifically informs the suspect that they are not required to do an act, on the other. To fail to observe that delineation, and caution the suspect against doing something, such as unlocking the phone when requested, would undermine the privilege against self-incrimination. The appellant submitted that viewed through this prism, a ‘generic’ caution issued at the outset to the effect that he was not required to answer questions was inadequate. 32 In Middlin-Hannah, the Court’s conclusion as to the need for a caution depended on the finding that it was sufficiently apparent that the police had not given the appellant a genuine choice not to give the PIN.12 For present purposes, that is the relevant inquiry. We accept the force of the appellant’s submission that even where a person is cautioned about answering questions, an instruction to do an act may well, in the particular context, warrant a conclusion that the person was nevertheless given no real choice about doing that act. 33 Thus, to take a simplified example, a person might be cautioned in ordinary terms against answering questions, and then have their phone seized lawfully but with an accompanying peremptory demand to unlock the phone that could not be interpreted as anything other than giving the person no choice but to do so. In such a case, the circumstances might well dictate that the caution was insufficient as the demand for the PIN had become effectively associated with the exercise of the search power. 34 In this regard, we note that 74BR of the Summary Offences Act and the surrounding provisions in Part 16A of that Act are designed to facilitate the necessary access to computer data where there are reasonable grounds to suspect that data held on a computer storage device may afford evidence of a child exploitation offence. Those grounds did not exist in this case, as the appellant was only suspected of arson at the relevant time. However, the existence of Part 16A highlights the importance of police not conveying a request for a PIN in terms that risk conflating that request with an exercise of the search power under, for example, s 68 of the Summary Offences Act. 35 Recognising this possibility does not, however, recommend a hard rule that a person must be cautioned specifically before being asked for a PIN. The circumstances of the caution and ensuing exchange might well warrant the conclusion that while the caution was in general terms, the person was given a genuine choice. We do not accept that it is always necessary to give a word-specific 12 Middlin-Hannah v The Queen (2020) 137 SASR 366 at [94]; [149]; [176]. -- 10 of 16 -- [2024] SASCA 51 The Court 9 caution regarding the privilege against self-incrimination when it comes to disclosing a PIN. 36 The specific context of the request for the PIN in this case raises further considerations, however. As the appellant submitted, the exchange occurred in the early hours of the morning in a remote location. The appellant was being asked questions by two police officers. DBS McClean admitted that he was ‘grumpy’. He was direct and challenged the appellant. The trial judge accepted that the appellant was not accustomed to police procedures and that he was stressed and nervous, particularly given that he had admitted to lying about not being the person who called in the fire. 37 The judge also found, however, that the appellant’s demeanour in the video footage of the interview did not indicate confusion as to what was happening or what was being asked. As noted above, she found DBS McClean to be an impressive witness who did not attempt to portray his own conduct in a favourable light. She found he was not so overbearing that the appellant was confused or bullied. 38 In that context, the immediately relevant sequence of events was that DBS McClean announced his seizure of the phone and then announced an intention to search the appellant’s car. SC Matthews then said, ‘What’s the access code to get in the phone?’ The appellant responded, ‘Um, I can deactivate it if you want.’ 39 The questions became more peremptory once the appellant had offered to deactivate the phone. In terms, they became demands. However, as the trial judge observed, this part of the exchange commenced with SC Matthews’s request for the PIN, followed by the appellant’s offer to deactivate. The police officers’ peremptory response was concerned with the appellant continuing to have control over the phone once they had announced their seizure of it. By then, the appellant had, consistently with his conduct throughout the interview, demonstrated a willingness to provide the PIN. His offer to deactivate it instead was on account of his not being able to remember the actual number and needing to deploy the necessary action with his fingers. 40 That context indicates that the potential difference between a question and a request to do a thing was not here significant. The police specifically did not want the appellant to do a thing, that is, unlock the phone. They asked what his PIN was. The sudden escalation in words and tone was otherwise explicable from the appellant’s own actions in response to that request. 41 Police cautioned the appellant at the outset of the interview. The interview was not interrupted. The appellant had, notwithstanding that caution, manifested a willingness to talk from the outset, in circumstances where it could not be concluded that he had not been given a genuine choice. The request for the PIN was the next step in that interview, albeit that it came on the announcement of the seizure of the phone. We are not satisfied that at the time SC Matthews made that -- 11 of 16 -- [2024] SASCA 51 The Court 10 request in the terms that he did, there had been any change in wording, manner or action by the police that could be said to have rendered the initial caution insufficient for its necessary purpose. 42 It follows that we reject the appellant’s contention that in the circumstances of this case, the police were required to caution the appellant specifically before requesting his PIN. 43 This question of the caution was argued independently of the consequence of the appellant having been under de facto arrest, the caution having been given at the outset. However, the second part of the appellant’s first ground of appeal, to which we now turn, is not entirely unrelated, although it was agitated as a standalone issue. De facto arrest, failure to give arrest rights and absence of a solicitor 44 Critically, at the time the appellant gave access to his phone, he was subject to a de facto arrest, the police having communicated to him that he was not free to go home for the night. That being the case, he was entitled to be advised of his rights under s 79A of the Summary Offences Act 1953 (SA). The police officers did not give him the necessary advice before requesting his PIN. 45 The judge exercised the discretion to admit the evidence of the phone contents notwithstanding this failure. In doing so, she noted expressly that the advice, had it been given, would have included advice of the appellant’s right to a solicitor. She also noted that this advice was attractive to him when his arrest rights were finally given. The appellant’s complaint in this regard was that this did not go far enough. He submitted that where a person requests a solicitor pursuant to s 79A(1)(b), and a solicitor is not available or cannot be contacted, police should wait until a solicitor is available and not give an inexperienced defendant the choice of proceeding in any event. 46 In R v Wilson,13 an indigenous defendant, Weetra, who had reached the accusatory stage in a rape investigation was advised of his rights and said that he wished to see a solicitor. Weetra showed signs of shyness and a poor education. A detective rang the Aboriginal Legal Rights Movement (‘ALRM’) at 7:50 am. That office was not yet open and there was no answer. The detective told Weetra that he had made arrangements for a solicitor from ALRM to be contacted at home and ring the police station. He then asked if Weetra wished to speak to the solicitor or continue with the interview. Weetra said, ‘Let’s get it over and done with’. 47 White J characterised this interaction as Weetra ‘succumb[ing] to an invitation which should not have been extended to such a vulnerable person’.14 There was no urgency in the interview. Then, when a solicitor was contacted near the end of the interview, the solicitor advised Weetra not to answer any more 13 (1987) 47 SASR 287. 14 R v Wilson (1987) 47 SASR 287 at 295. -- 12 of 16 -- [2024] SASCA 51 The Court 11 questions and told the detective he had given that advice. However the detective again asked Weetra if he wished to continue or stop and Weetra agreed to go on if it was not for too long. In excluding the evidence of the interview with Weetra from the trial, White J said:15 When Weetra expressed a desire to exercise one of his rights under s 79a, that is, his desire to see his solicitor before answering further questions, that request should have been respected. Some persons are able to assert their rights more readily and forcibly than others. Wilson, for example, did so. Weetra felt himself unable to hold out. It would have been better if the option of going on had not been left to Weetra, at least until it became evident that a solicitor was not available at all. The combined effect of the conduct of the detectives was to question Weetra without a magistrate’s authorisation and to deprive Weetra of his solicitor’s advice as contemplated by s 79a. Their conduct breached both the letter and the spirit of ss 78 and 79a … the breach of both sections persuade me, in combination, that I should exclude the evidence of answers at the interrogation. Notwithstanding the seriousness of the charge of rape, the proper desire of the detectives to clear the matter up and their honest belief that they did not need a magistrate’s authorisation, they knew that Weetra did not wish to answer questions without seeing his solicitor and they acted in ways which, in effect, denied him his rights. 48 The circumstances with respect to the defendant Weetra in Wilson were relatively extreme. Nevertheless, as Debelle J said in R v Andrews & Ors:16 It is implicit in s 79A that a reasonable opportunity must be afforded to an arrested person to exercise the rights being recited to him. If that were not so, the rights provided by s 79A would be rendered nugatory. When an arrested person expresses a wish to have a solicitor, relative or friend present while being questioned by police officers, the interviewing officer should take reasonable steps to enable the arrested person to exercise that right. That obligation is the greater if the arrested person has on a former occasion and in relation to the same matter expressed a desire to have a solicitor present and has acted on advice given by that solicitor. The officer is not discharged from that obligation by the arrested person not promptly identifying who that person should be. 49 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 50 In Middlin-Hannah, Livesey J observed:17 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 15 R v Wilson (1987) 47 SASR 287 at 296. 16 [2005] SASC 15 at [58]. 17 Middlin-Hannah v The Queen (2020) 137 SASR 366 at [155]. -- 13 of 16 -- [2024] SASCA 51 The Court 12 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 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) 51 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. 52 The offence of dissemination of CEM contrary to s 63 of the Criminal Law Consolidation Act is a serious offence, demonstrated by the maximum penalty of 15 years. The offence of possession of CEM contrary to s 63A(1)(a) carries a 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). 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). 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). -- 14 of 16 -- [2024] SASCA 51 The Court 13 maximum penalty of 12 years. The evidence of the CEM in the appellant’s phone was both highly probative and of critical importance in the proceedings, such that the offences could not have been charged without it. 53 We do not depart from the findings of the trial judge that there was no deliberate conduct on the part of the police officers to circumvent the law, conscious impropriety or reckless disregard for police obligations. There was no suggestion that the failure to give the arrest rights was condoned by higher authorities. 54 The failure to give the appellant his arrest rights was, in the circumstances of the de facto arrest, significant. A solicitor would likely have advised the appellant not just that he need not provide the PIN, but that he should not do so. This was in circumstances where the phone had been seized and where it had been communicated to the appellant that he was not free to leave. It was after 3:50 am in a relatively remote location. The failure to give the arrest rights with the capacity to alter the manifest power imbalance arising in the circumstances resulted in significant practical unfairness to the appellant. 55 It is impossible to say how the advice of a solicitor would have affected the appellant’s suggestibility in the circumstances. It is true that the appellant continued to speak when he was later given his arrest rights. However, he did express a wish for a solicitor once he was advised of that right. DBS McClean suggested that while they could make a phone call, if the appellant wanted somebody else present ‘while we speak to you’, such as a relative or friend, they ‘might be able to make that happen’. The appellant acquiesced to this suggestion, saying he would call his mum. 56 While this exchange is not in issue, it was potentially problematic in circumstances where the appellant had indicated a wish for a solicitor. That is, the appellant’s willingness to continue talking manifested in a situation where the police had suggested an alternative of a friend or relative, in the face of the appellant’s expressed preference. For the reasons discussed above, that suggestion was inappropriate. We therefore set little store by the appellant’s willingness to continue after being given his arrest rights, and certainly less than the judge did, when considering the exercise of the discretion. 57 It was agreed that at the time, police did not have the technology to bypass the PIN. That is, it was only on the appellant’s provision of the PIN that the phone could have been accessed and the CEM discovered. The resultant forensic unfairness was genuine.26 58 That is now no longer the case. The following fact has been agreed as at 4 March 2024: 26 Cf. Middlin-Hannah v The Queen (2020) 137 SASR 366 at [96] (Kourakis CJ); [154] (Livesey J); [178] (Bleby J). -- 15 of 16 -- [2024] SASCA 51 The Court 14 By use of technology such as Graykey SAPOL presently has the ability to access a significant number of mobile devices seized in the course of investigations, where the PIN code is not known. This includes most, but not every, model of iPhone. Companies which provide this technology continually conduct research to attempt to exploit of ‘bypass’ security on mobile devices to gain this access, a process which also occurs on the release of new models of mobile telephones and operating systems. 59 As the judge noted, the appellant’s provision of the PIN did not affect the cogency of the evidence. 60 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 61 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. -- 16 of 16 --