The Queen v Kerkhoffs[2015] QDC 198

DISTRICT COURT OF QUEENSLAND

1. [1]
   On 12 January 2015, an indictment was presented in this Court, charging the applicant with arson and attempted fraud, in the following terms:

Count one 

“That on or about the twenty-seventh day of August, 2013 at Landsborough in the State of Queensland, REBECCA PAULINA KERKHOFFS wilfully and unlawfully set fire to a motor vehicle”. 

Count two

“That on or about the twenty-seventh day of August, 2013 at Parrearra in the State of Queensland, REBECCA PAULINA KERKHOFFS attempted to dishonestly obtain a sum of money from RACQ INSURANCE LIMITED”.^[1] 

2. [2]
   By an application filed on 19 March 2015, the applicant seeks an order pursuant to s 590AA(2)(e) of the Criminal Code, excluding the evidence obtained consequently to the seizure of her HTC mobile phone (“phone”).^[2] The underlying basis of that application is the contention that the seizure of her phone was unlawful. It is then further contended that evidence obtained as a result of the subsequent examination of the phone and in the nature of the text messages, should be ruled inadmissible, in the exercise of judicial discretion.^[3]
3. [3]
   The respondent alleges that the applicant arranged for her car to be stolen and burned, so as to allow her to make a fraudulent insurance claim on her insurer and which was ultimately denied because, after investigations, there were concerns as to the veracity of the reported circumstances as to the discovery that the car had mechanical issues and the applicant was in straitened financial circumstances Accordingly, the respondent seeks to rely upon the following text messages, in proof of the applicant’s motivation to commit the alleged offences:

4. [4]
   There is a further message included in the material considered on this application, which is also recorded as having been sent to the applicant by her mother, who is not to be a prosecution witness and apparently, in response to the last of the applicant’s messages, as set out above. That message and some responses from the applicant, are recorded as follows: 

5. [5]
   Unlike the earlier sequence of messages which, if admitted, are to be relied upon as admissions by the defendant and related communications from her mother, in order to provide context and coherence in that respect, the last messages from the defendant are problematic. Whilst the admission as to requesting a loan is repeated, the effect would be to allow reliance on the assertions from the mother in an entirely testimonial sense, as those assertions are expressly not adopted by the applicant.  The evidence of these assertions by the applicant’s mother is not, therefore, admissible. It would amount to reliance on hearsay and the appropriate way of adducing any such assertion, is by evidence from the applicant’s mother, with the applicant then having an opportunity to cross-examine the witness. Further and in the absence of the context of that message, it is at least doubtful that the prosecution can sensibly or meaningfully rely on the last two messages from the applicant. 
6. [6]
   However and subject to the issues that have been raised, the other messages are potentially admissible and obviously probative of the allegations made against the applicant. 

The contentions

7. [7]
   The starting point is the contention that the applicant’s phone was unlawfully obtained by Detective Senior Constable Ross Gordon (“the constable”), on 14 September 2013, in that he lacked the lawful authority or power to do so. Although, it was additionally contended that there was also a lack of authority or power for the subsequent examination of the phone and which disclosed the relevant messages, the critical issue is as to the lawfulness of the constable’s action in seizing the phone for the expressly stated purpose of such an examination.     
8. [8]
   It is first necessary to note the essential facts uncovered by the police investigation of this matter, including the circumstances of the seizure of the applicant’s phone:^[4]

   1. (a)
      at the time of the alleged offences, the applicant, was the owner of a 2005 Mitsubishi Challenger 4wd (“vehicle”) with the Queensland Registration number: 207 SCB which, was purchased by the defendant’s parents;

2. (b)
   at approximately 9:20am on Tuesday, 27 August 2013, police attended the applicant’s house at 20 Sanibel Court, Parrearra, to attend to her report that her car had been stolen and where the applicant told the police the following: 

1. (i)
   she had locked and parked her car on the street, outside her house at about 5pm the previous evening;
2. (ii)
   she had left personal items including an iPod, GPS and a toolbox with assorted tools, in the car;
3. (iii)
   she remembers seeing her car at 7:30pm the previous night and a neighbour last saw it there, about 10pm;
4. (iv)
   she had received two sets of keys when the car was purchased, but could only produce one set to police; and 
5. (v)
   she showed the police that she left the car on the grass verge, almost directly outside the front door and a pile of broken glass which had been left about two metres from where the front corner of the car would have been parked. 

3. (c)
   later that morning, police located the applicant’s burnt out car, at the intersection of Forestry Road and Hapgood Road, Landsborough.
4. (d)
   the applicant had a comprehensive motor vehicle insurance policy with RACQ, with her vehicle insured for “the market value of $11,000” and on 27 August 2013, she lodged an insurance claim for the theft and burning of her car; 
5. (e)
   on 30 August 2013, the applicant was interviewed by an investigator for RACQ and she reiterated that at purchase (in May 2012, for $10,000), she was supplied with the two sets of keys and stated that they had not been duplicated or lost and had been inside the house at the time of the alleged offence and added that she had found the second set of keys, in her desk at home. She asserted that the car was in good mechanical condition and described her financial position as comfortable, although she had credit card debt and a personal loan and had been refused on an application for a loan of a further $15,000, due to repayment defaults. When asked about possible suspects, she nominated the boyfriend of a friend’s daughter: “Blake”;
6. (f)
   on 4 September 2013, a “forensic locksmith” examined the burnt vehicle and found that there was no evidence that any door had been forced open or of any attempt to unlock a door and that the car could not be “hot wired” as it had “a highly complex immobilizer system”, which required communication with a chip in the car key and therefore a “highly complex code” programmed in such a key, in order to operate it;
7. (g)
   on 12 September 2013, the applicant was again interviewed by the insurance investigator. By this time, investigations had disclosed that on 20 June 2013 and when the car was serviced, the applicant had been informed of a potential problem with the gearbox, which required further investigation and might involve significant repair cost. When this was raised with the applicant, she denied that this issue was raised with her and maintained that her financial position was “comfortable”. In relation to the findings of the locksmith, she said that someone may have made a spare copy of her key and again pointed to “Blake”, as a possible suspect. She denied being or knowing who was, involved; and
8. (h)
   at approximately 9:45am on 14 September 2013, police attended the applicant’s residence and advised that she was under investigation for insurance fraud and it is during this interaction that her phone was taken into police possession and then, after the applicant accompanied the police to a police station, it was subjected to examination and this resulted in the text messages being ascertained.

9. [9]
   Subsequently, the applicant was arrested for the alleged offences and Blake Surch was also located and he informed police that:

1. (a)
   A couple of weeks before 31 July 2013 (his 19^th birthday), the applicant spoke to him, in the following terms: “I want to do an insurance job on it. I need someone to burn my car out for me. I thought I’d ask you first as I know you are struggling for money. I will pay you a thousand each to burn it once the insurance money comes in.” He agreed to think about and asked his friend Jake Warner to help;
2. (b)
   Subsequently, the defendant said to him: “I’m going to leave the car key on the wheel. You’ve got to smash the driver side window and rip the ignition casing so that it looks like it’s been hotwired”. However, he and Warner decided not to be involved and when he told the applicant this, she said: “that’s okay I’ve got someone else lined up to do it”;
3. (c)
   Later, the applicant told him: “I’m getting investigated about my car getting burnt out. The people I had do it stuffed it up. They didn’t smash the window or hot wire the car and put glass on the ground to make it look like it got smashed”.^[5].

10. [10]
    At the hearing of the application, the respondent contended that the evidence obtained by examination of the phone be admitted, because the seizure of the applicant’s phone was lawful, as an exercise of power pursuant to s 29 of the Police Powers and Responsibilities Act 2000 (“PPRA”). Prior to the making of further written submissions by the parties, it was identified that s 196 of the PPRA also required consideration and the respondent then also adopted this as a source of lawfulness of the constable’s actions. Also and if the evidence was found to be unlawfully obtained, then it does not follow, as the respondent submits, that the discretion should be exercised in such a way as to exclude this evidence.

11. [11]
    Ultimately, counsel for the applicant submitted that neither of the identified provisions of the PPRA, provided any lawful basis for the constable’s conduct and that an appropriate exercise of judicial discretion was to exclude this evidence in the exercise of the principles discussed in Bunning v Cross.^[6]   
12. [12]
    Because there were recurrent themes in the applicant’s submissions, it should be noted that it was identified that an alternative open to the constable, was to have obtained a search warrant, by application made under s 150 of the PPRA.  Whilst that is correct, what must be noted is that, as is expressed in s 150(1), a purpose of any such application is to obtain authorisation to both “enter and search a place”. Secondly, reference was made to s 160 of the PPRA, as an “emergent search” power, with the accompanying contention that if that provision applied, illegality on the part of the constable lay in his not then having obtained a post-search approval, in accordance with s 161 and s 162 of the PPRA.  However, that contention was not pressed, for the obvious reason that these provisions are also premised on providing authorisation of an exercise of power, in specified circumstances, to enter a place, so that “search warrant powers”^[7] may be exercised and that is simply not what occurred here.  In any event the primary question on this application is as to whether there was a lawful justification for what the constable did, rather than what he did not do.

13. [13]
    Therefore and in the first instance, it is necessary to determine whether the seizure of the applicant’s phone was unlawful, in that it was not justified by either s 29 or s 196 of the PPRA^[8] and then and if so, it will be necessary to determine whether or not the appropriate exercise of discretion is to exclude the evidence, so obtained.

Whether the seizure of the phone was authorised by s 29? 

14. [14]
    First, it will be instructive to set out the provisions of s 29 and also s 30 of the PPRA, as the latter defines the “prescribed circumstances” and as to which there must be ‘reasonable suspicion’, before s 29 may apply: 

“29 Searching persons without warrant

1. A police officer who reasonably suspects any of the prescribed circumstances for searching a person without a warrant exist may, without a warrant, do any of the following—

1. (a)
   stop and detain a person;
2. (b)
   search the person and anything in the person’s possession for anything relevant to the circumstances for which the person is detained.

(1A) A police officer who reasonably suspects a person is a participant in a criminal organisation may, without a warrant, do any of the following—

1. (a)
   stop and detain the person;
2. (b)
   search the person and anything in the person’s possession for anything that may provide evidence of the commission of an offence.

(2)   The police officer may seize all or part of a thing—

1. (a)
   that may provide evidence of the commission of an offence; or
2. (b)
   that the person intends to use to cause harm to himself, herself or someone else; or
3. (c)
   if section 30(b) applies, that is an antique firearm.

30 Prescribed circumstances for searching persons without warrant

The prescribed circumstances for searching a person without a warrant are as follows—

(a)   the person has something that may be—

1. (i)
   a weapon, knife or explosive the person may not lawfully possess, or another thing that the person is prohibited from possessing under a domestic violence order or an interstate domestic violence order; or
2. (ii)
   an unlawful dangerous drug; or
3. (iii)
   stolen property; or
4. (iv)
   unlawfully obtained property; or
5. (v)
   tainted property; or
6. (vi)
   evidence of the commission of a seven year imprisonment offence that may be concealed on the person or destroyed; or
7. (vii)
   evidence of the commission of an offence against the Criminal Code, section 469 that may be concealed on the person or destroyed if, in the circumstances of the offence, the offence is not a seven year imprisonment offence; or
8. (viii)
   evidence of the commission of an offence against the Summary Offences Act 2005, section 17, 23B or 23C; or
9. (ix)
   evidence of the commission of an offence against the Liquor Act 1992, section 168B or 168C;

2. (b)
   the person possesses an antique firearm and is not a fit and proper person to be in possession of the firearm—

   1. because of the person’s mental and physical fitness; or
   2. because a domestic violence order has been made against the person; or
   3. because the person has been found guilty of an offence involving the use, carriage, discharge or possession of a weapon;

3. (c)
   the person has something that may have been used, is being used, is intended to be used, or is primarily designed for use, as an implement of housebreaking, for unlawfully using or stealing a vehicle, or for the administration of a dangerous drug;

4. (d)
   the person has something the person intends to use to cause harm to himself, herself or someone else;

5. (e)
   the person is at a casino and may have contravened, or attempted to contravene, the Casino Control Act 1982, section 103 or 104;

6. (f)
   the person has committed, is committing, or is about to commit—

   1. an offence against the Racing Act 2002; or
   2. an offence against the Corrective Services Act 2006, section 128, 129 or 132, or the repealed Corrective Services Act 2000, section 96, 97 or 100; or
   3. an offence that may threaten the security or management of a prison or the security of a prisoner.”

15. [15]
    It was the constable’s evidence that:

    1. (a)
       The applicant had become a suspect in his mind, after he became aware of the locksmith’s report, particularly because the applicant had told him that she had provided “both keys for the vehicle” to the insurer;^[9] 
    2. (b)
       Prior to his seizure of the phone on 14 September 2013 and on 9 September 2013, he had requested the “call charge records…including the cell tower locations” for the applicant’s phone service, in order to investigate the location of her phone, at relevant times, and phone contacts;^[10]

3. (c)
   By 14 September 2013, he had not received any response to his request but he then approached the applicant, as a suspect, at her house and invited her for interview at a police station. As for the phone, he explained that he observed her carrying it when she answered the door and then putting it down in the house and that “the thought occurred to [him] that [it] may contain evidence in relation to this offence” and prior to this he “hadn’t given it  a first thought”. He further explained that he informed the applicant she was a suspect, under investigation for insurance fraud and that she was provided with warnings and safeguards in accordance with the PPRA. He also explained that the applicant had invited the police officers into her house and that she agreed to come to the police station but wanted to make arrangements for a support person and in respect of her child, who was at the house. Ultimately, it was arranged that the applicant would drive, with her son in her own car and the police followed her there;^[11] and
4. (d)
   More specifically and in respect of his seizing of the phone, the constable recalled that after she was informed she was a suspect of insurance fraud, he asked to see the phone and the applicant retrieved it and after she made a call to her brother, she gave it to him. He described that “during the conversation [he had] mentioned to her that [he] would be taking the phone and having it – a look at the phone atthe police station – and she gave [him] the phone. She handed it to [him]” and then there was further discussion, at the police station and he “gave her a field property receipt and told her [he] would be keeping the phone until it was…downloaded”. ^[12]

16. [16]
    The constable specifically contended that he had acted to seize the applicant’s phone under s 29 and because he thought it may provide “evidence of the commission of a seven year imprisonment offence”.^[13] Earlier, he had explained why he had thought it necessary to act immediately and in order to avoid any possibility of any material being deleted from the phone. Although there was some challenge to the constable’s suggestions as to the need for immediacy of action, it should be accepted that the  constable held a reasonable suspicion as to a necessary prescribed circumstance, as set in subparagraph (a)(vi) of s 30. In particular, the apparent cogency of  the following evidence may be noted:

“Yes?---that conversation, I asked her who was in the house.  She told me that her son, Jonas, was there through the back of the house in the living room where the television was.  I asked her if there were any other adults in the house, and she indicated there was.  She – at that time I had – the thought that occurred to me:  that the mobile she had had when she answered the door may contain evidence in relation to this offence.  That was the first time I had thought mobile phone.  And the conversation then developed.  Kate asked her, does the person have the name who is here.  And she said yes, it’s Jake.  She doesn’t want to get him involved.  The situation was just a bit strange.  I – it heightened by suspicion.  It made me think that perhaps there would be associates of the defendant who may have something that they could contribute to the investigation;  that may know of something about what’s happened. 

Now, prior – so prior to attending that residence, had you formed any opinion about the defendant’s phone or the contents of it?---I hadn’t given it a first thought.  I had not thought about needing the phone at that stage.  I think I had requested cell tower data. 

Yes?---My reasons for that were to ascertain whether or not she was in her house the night that it occurred.  

Yes?---The version she’d provided was she went to bed at 10 o’clock at night.  It was pretty obvious to me that if she’d gone out and taken her phone with her, the cell tower information may support that, and it may also support the fact that she was in bed, and her phone was in the house that night.  

So - - -?---As – as far as thinking about ceasing (sic) her phone from her, I had not thought of that at all until I was in the house on the 14^th of September.  

And saw her with it?---Yes.  Correct.  

So you’d formed an opinion about the cell tower locations, but hadn’t thought of the phone?---Correct. 

And what opinion or thoughts did you have about the phone?  What contents of the phone – sorry.  I’ll start again.  What opinion or thoughts did you form about what there may be in the contents of the phone that would be evidence?---Well, at once – once I suspect there may be evidence on a phone, there’s an urgency to secure that evidence.  It – particularly, in the case of smartphone, which this was.  This was a smartphone.  With a smartphone it has internet access.  Generally, nowadays, most people would use social media like Facebook Messenger and other means of communicating.  I know from my experiences with investigations to do with phones that that information can be wiped very, very quickly by a person.  So by the press of a few buttons that can be deleted.  And also, with smartphones, it is possible to delete information from the phone remotely, so a third party could actually delete remotely.  So there is – once a decision’s made to seize a smartphone, there is a need to take certain measures to secure that quickly.”^[13]

17. [17]
    Much of the applicant’s criticism of the constable’s actions was premised on the availability of procedure under the PPRA for obtaining a search warrant and thereby, putting any issue about the legal authorisation for the seizure at an end. However, that criticism largely depended on a hindsight contention that the issue of seizure of the phone should have occurred to the constable at an earlier point in time and when the obtaining of a search warrant may have remained as an effective exercise. Further, that argument is met by the acceptance of the constable’s evidence that what actually occurred, was that the seizure of the phone first occurred to him in conjunction with his attendance on the applicant to inform her of the development that she was under investigation as a suspect and therefore, in circumstances that heightened the possibility of deletion of any information which may have been of interest to the constable.  

18. [18]
    The question is, therefore, not as to whether there may have been other and even more preferable alternatives that were open to the constable but rather, as to whether he acted lawfully, at the time. 
19. [19]
    As to the prosecution reliance on s 29 of the PPRA, as the source of legality or authorisation, there is some tension in the applicant’s contentions. In the first instance, it is contended that the phone was seized and not obtained voluntarily and it must be noted that support for that contention is gained from the prosecution reliance on s 29 and the constable’s express reference to him having seized the phone.^[14] However and on the other hand and understandably, for the applicant, the compliant and it might be said apparently voluntary, nature of her actions in supplying the phone to the constable were pointed out, as precluding the circumstances from being an instance of the exercise of power under s 29.
20. [20]
    An obvious problem with the prosecution reliance on this authorisation, is that s 29(1) authorises specific exercises of power, to stop and detain and search a person. Whilst a disjunctive reading is permitted by the preceding words “to do any of the following”, any search of a person or anything in a person’s possession must be for “anything relevant to the circumstances for which the person is detained”, being any such purpose as set out in s 30. Accordingly, the authorisation appears to be directed at an exercise of power to interfere with personal liberty and to detain a person, so that, at least, a search of something in that person’s possession may occur. As pointed out for the applicant, the evidence of the constable was to agree that the applicant was neither arrested nor detained, at the relevant time. Otherwise, his explanation for reliance on s 29, was that she was in his custody, notwithstanding that no express action, by words or otherwise, had occurred to effect that situation.^[15]

21. [21]
    The PPRA does not provide a statutory definition as to when a person is ‘detained’ for the purposes of s 29, or otherwise.^[16] However, what is required is detention only in so far as interference with personal liberty is necessary, to effect the necessary purpose. Here that was to obtain possession of the phone, so that information stored in it might be accessed. 
22. [22]
    Moreover, the question is one of fact and may be determined by the effect rather than formality of what occurred. Albeit that they were offered in a different context, some instruction may be gained from the observations of  King J in R v Lavery:^[17] 

“A suspect may, voluntarily and without constraint, accede to a police officer's request to accompany him and, if he does so, there is of course no interference with his liberty. This is so even if he goes reluctantly out of respect for authority or fear that a refusal will be construed as an indication of guilt or some other similar motive. The suspect's liberty is not under restraint simply because the police officer would or might arrest him if he were to exercise his right to depart or to refuse to accompany the police officer. If, however, the circumstances are such as to convey, notwithstanding the use of words of invitation or request, that the suspect has no real choice, his freedom is under restraint and he cannot be regarded as accompanying the police officer voluntarily. If such a situation comes into existence, and the police officer does not wish to make an arrest, it is incumbent upon him to make it clear by words or actions that the suspect is free to refuse the invitation and is free to depart.”^[18]

23. [23]
    The respondent invites a conclusion that what occurred here was sufficient to determine that the applicant was, in effect, detained, because, it was submitted, the PPRA clearly distinguishes between arrest and detention^[19] and in the respondent’s submission, detention encompasses a broader range of potential actions by police, which may be limited in scope, purpose or time.^[20] Here, the respondent submits that the applicant was temporarily detained for the purpose of a search and seeks to rely on R v Peirson^[21] for support that no overt or demonstrable act or statement by an officer is required to comprise an act of detention. 

24. [24]
    First, the respondent points to the fact that after the constable had a discussion with the RACQ investigator in relation to the forensic locksmith report, the applicant became a suspect in this matter. As he said: 

“Well, I went to the house to speak to the defendant as a suspect, due to the new information received in relation to the forensic locksmith report.

Yes?---So I gave her her rights and warnings, and, as a conversation developed, she was different to the previous time I’d been there.  She was very nervous and edgy.”^[22]

25. [25]
    Further, the respondent submits that after the applicant was asked to accompany the constable to the police station, the applicant requested the she ring her brother, which was allowed and the point the respondent seeks to make is that the constable then positively monitored the applicant using her phone, which is another aspect, the respondents submits, pointing to the conclusion that she was detained.^[23] The constable gave evidence as follows: 

“Did she use the phone in your presence?---Yes.

Did you observe her use the phone?---Yes. 

And what was that for?---She – when I gave her rights, she intimated she wanted to speak to her brother, Mark.  And I said that was fine.  So I stood next to her while she dialled the phone,

Yes?---And I watched her closely so that she couldn’t delete things from it.

Yes?---And she phoned up Mark.  He didn’t answer.  So she then phoned her mother.  While she was on the phone to her mother, the call came in from Mark, and she then had a – so she had a conversation with both her mother and her brother.  She made arrangements for her mother to attend Caloundra Police Station and meet her there.”^[24]

26. [26]
    Moreover, the respondent points out that even though the defendant drove herself to the police station in her own vehicle, it was borne out of practical necessity in not wanting to leave her young son unattended, without a family member at the residential home^[25] and in any event, the applicant was in essence, escorted by the police, as the constable recalled: 

“All right?---So rather than have Jonas in a police car with us – I didn’t think it was necessary – so I had possession of her phone - - - 

Yes?--- - - - and she drove.  She drove with Jonas and we followed her.  So we went in a convoy from her residence to Caloundra Police Station.”^[26] 

27. [27]
    Lastly, the respondent points out that another circumstance supporting such a conclusion is that the constable was prepared to arrest the applicant, had she refused his request.^[27] However and on the other hand, the applicant invites a view that this is a factor supporting the conclusion that the applicant was never detained and highlights a passage in the constable’s cross-examination in which, he agreed to that very proposition:  

“- - - in any event, she clearly wasn’t arrested?---Correct.

She wasn’t detained?---No. 

So how does section 29 have any relevance?---She was in my custody.  I was investigating an indictable offence.  She was a relevant person in relation to that – to the arson.  Had she refused to attend at the police station, then I would have arrested her for investigation of the offence.

But you - - -?---So I deemed that she was in my custody and, therefore – a – a technicality.  She was in my custody.  She was detained.“^[28]

28. [28]
    In addition to pointing to the constable’s interchangeable use of the terminology, “she was detained” and “she was in my custody”, the applicant also pointed to the following evidence from the constable:

“But she wasn’t really in your custody because she drove in her own car to the police station?---But at the time I was speaking to her in the house, I was there investigating an arson.

So you’ve got the phone at the house and then you drive in separate cars and then you get to the police station and then you meet up again and then you seize the phone at the police station?---No.

You seized the phone at the house?---Yes.

So she wasn’t really detained, was she?  She was invited to come to the police station, which she complied with?---Look, at that time, she was in my custody.

Was she handcuffed?---No.

Did you say to her, “You’re in my custody”?---I don’t remember if I used those words, but she, quite clearly, was.  

Did you say any words to the effect that she was in your custody?---As I said, I don’t recall whether I used those words. 

So you were invited into the house?  You didn’t enter the house under a warrant?---No. 

And you never expressed any words that she was arrested?---No.

And no words to the effect that she was detained?---No.

And no words to the effect that she was in your custody?---I’ve said twice, I don’t recall whether I used those words.  It was quite obvious that she was in my custody.“^[29] 

29. [29]
    Although the applicant correctly identifies that a police officer's asserted belief that the person was detained or it can be said, as to acting under a particular power, is not determinative,^[30] the question may be determined by the effect of the circumstances and the reasoning of King J in R v Lavery^[32] may be adapted and applied.   Accordingly, the question is not to be determined by reference to the state of mind of the constable, or his evidence as to what he would or might have done, in the absence of the applicant’s compliance to his requests. But the surrounding circumstances may support the conclusion: 

“…. notwithstanding the use of words of invitation or request, that the suspect has no real choice, his freedom is under restraint and he cannot be regarded as [acting] voluntarily.”^[33] 

30. [30]
    Notwithstanding that all that is required is effective detention only in so far as interference with personal liberty would be necessary to effect the purpose of obtaining possession of the phone, so as to access the information stored in it, the difficulty here is the obstacle that is presented by the extent of compliance of the applicant with requests that were not, on the face of things, accompanied by any lack real choice or restraint of freedom to act otherwise. For example, to at least request an opportunity to take legal or other advice, before complying. However and when directly asked as to how he obtained possession of the phone, the constable gave the following evidence:

“What did you say and what did you do in order to get the phone in your hand, presumably?---Well, I – during the conversation, I mentioned to her that I would be taking the phone and having it – a look at the phone at the police station – and she gave me the phone.  She handed it to me.

All right?---And when I got to the police station, there was discussion about the phone and I gave her a field property receipt and told her that I would keeping the phone until it was - - -  All right?--- - - - downloaded. 

So you told her that you would be taking it and she handed it - - -?---Yes.”^[34]

31. [31]
    It may be seen that these circumstances are open to conclusions, as to which, reasonable minds might differ. Having regard to the constable’s indication that he “would” be taking the phone and the consideration that the circumstances, conceivably, may have been connected to an actual detention by the constable simply adding words such as “and I am now detaining you for that purpose”, it should be found that this is effectively what occurred. It can also be noted that if there is no such finding and consequently no exercise of power and therefore, authorisation under s 29, it might also be logically concluded that is because the phone was obtained entirely voluntarily and therefore, legally. However and as has been noted, the respondent did not contend for such a finding and also because of what follows, it is unnecessary to examine that any further.

Whether the seizure of the phone was authorised by s 196? 

An alternative source of power for the seizure of the applicant’s phone by the constable is, s 196 of the PPRA: 

“196 Power to seize evidence generally

1. (1)
   This section applies if a police officer lawfully enters a place, or is at a public place, and finds at the place a thing the officer reasonably suspects is evidence of the commission of an offence.

2. (2)
   The police officer may seize the thing, whether or not as evidence under a warrant and, if the police officer is acting under a warrant, whether or not the offence is one in relation to which the warrant is issued.

3. (3)
   Also, the police officer may photograph the thing seized or the place from which the thing was seized.

4. (4)
   The police officer may stay on the place and re-enter it for the time reasonably necessary to remove the thing from the place.”

32. [32]
    Here, it is clear that the constable had lawfully entered the applicant’s residence and once it is accepted, as it has already been indicated it should be, that the constable reasonably suspected that the phone contained evidence of the commission of an offence, then he was entitled to seize the phone pursuant to this power.  Further and given that the purpose of such an exercise of power is to access the suspected evidence, the seizure of the phone must necessarily be regarded as the means to seizure of that evidence and therefore, the power logically extends to examination of the phone and extraction and preservation of any such evidence.
33. [33]
    It is simply not to the point for the applicant to contend that the constable, in his evidence, did not point to or seek to rely upon this authorisation for his conduct but rather contended that he acted pursuant to s 29 of the PPRA. The issue here is whether the constable acted lawfully, not whether he correctly understood the law. 
34. [34]
    The further contention of the applicant is developed as follows: 

    1. (a)
       first, reference is made to the Explanatory Note for the clause in the Police Powers and Responsibilities Bill 2000 and referable top the provision enacted as s 196 of the PPRA and particularly the reference to the “chance discovery rule” in the following extract: 

“The clause enshrines the essence of the 'chance discovery' rule in legislation while applying the search warrant powers and responsibilities contained in the Bill to it.”; and 

2. (b)
   then and after referring to Ghani v Jones,^[35] as the primary case dealing with this issue at common law, it is contended that there was “no chance discovery” by the constable, because “[h]e knew she had a phone, which was relevant evidence (because he had sought the CCR records).”

35. [35]
    First, it can be observed that the applicant’s submission tends to focus particularly on the reference to “the ‘chance discovery’ rule”, rather than the broader context indicating attention to the “essence” of such a rule.   Secondly, it is necessary to note that it has been emphasised by the High Court that the task of statutory construction must begin with a consideration of the “text itself and that reference to historical considerations and extrinsic material cannot be relied on to displace the clear meaning of the text”. Rather and in addition to the language that has been employed, being the“surest guide to the legislative intention”, ascertainment of the meaning of the text “may require consideration of the general purpose and policy of a provision, in particular the mischief it is seeking to remedy”.^[36]

36. [36]
    Further, it has been noted that the Commonwealth equivalent to the provision in the Queensland legislation that may permit reference to extrinsic material, does not permit such recourse for the purpose of departing from the ordinary meaning of the text.^[37] 
37. [37]
    In any event, it may be noted that the primary authority to which reference was made, does not support such a limited approach. In Ghani v Jones, the following observations were made: 

“What is the principle underlying these instances? We have to consider, on the one hand, the freedom of the individual his privacy and his possessions are not to be invaded except for the most compelling reasons. On the other hand, we have to consider the interest of society at large in finding out wrongdoers and repressing crime. Honest citizens should help the police and not hinder them in their efforts to track down criminals. Balancing these interests, I should have thought that, in order to justify the taking of an article, when no man has been arrested or charged, these requisites must be satisfied:

First: The police officers must have reasonable grounds for believing that a serious offence has been committed - so serious that it is of the first importance that the offenders should be caught and brought to justice.

Second: The police officers must have reasonable grounds for believing that the article in question is either the fruit of the crime (as in the case of stolen goods) or is the instrument by which the crime was committed (as in the case of the axe used by the murderer) or is material evidence to prove the commission of the crime (as in the case of the car used by a bank raider or the saucer used by a train robber).

Third: The police officers must have reasonable grounds to believe that the person in possession of it has himself committed the crime, or is implicated in it, or is accessory to it, or at any rate his refusal must be quite unreasonable.

Fourth: The police must not keep the article, nor prevent its removal, for any longer than is reasonably necessary to complete their investigations or preserve it for evidence. If a copy will suffice, it should be made and the original returned. As soon as the case is over, or it is decided not to go on with it, the article should be returned.

Finally: The lawfulness of the conduct of the police must be judged at the time, and not by what happens afterwards.”^[38]

38. [38]
    It can be seen that the emphasis is upon the character of the thing, as evidence of the commission of an offence and, more particularly, the requirement of reasonable grounds for belief as to that characteristic. 
39. [39]
    However, the point that is raised may also be viewed as a contention that the reference in s 196 to a police officer finding something at a place: 

    1. (a)
       is to be limited to part of the first meaning of the verb “find”, as found in the Macquarie Dictionary, Fifth Edition: “to come upon by chance; meet”; and 

2. (b)
   that the circumstances here do not satisfy such a meaning. 

40. [40]
    Some support for such a contention may be found in that, in the same dictionary, the definition of the word “chance”, as a verb is “to happen or occur by chance” and the phrase “by chance” is defined as meaning “accidentally”. However and more importantly, the definition of “find” is itself not so limited, as the addition of the word “meet”, in the first definition, indicates. 
41. [41]
    Moreover, s 196 must be considered, in context, as intended to provide a power to facilitate the investigation of and gathering of evidence as to offences, by police officers. As is made clear by subsection (2), that power may be exercised in addition to those which are authorised under a search warrant, as well as where no such warrant has been obtained. It is therefore, at least, difficult to see why the power should be limited, if the necessary conditions are otherwise satisfied, so that it would exclude seizure of something that may, have been included as “warrant evidence or property that may be seized”^[39] but was not, due to oversight or lack of foresight. 
42. [42]
    The meaning of s 196 is therefore, clear and the authorisation provided to a police officer, if the other conditions as to lawfully entering a place or being at a public place and having the requisite reasonable suspicion as to it being evidence of the commission of an offence, extends to seizure of any such thing that is found there, in the sense that the officer meets it there or then comes upon that thing, as well as finding it in any sense that the location of the thing there, was unpredictable. 
43. [43]
    Accordingly, there appears to be no proper basis to read down the reference to the condition that a police officer “finds at a place a thing”, in s 196, in any way that would accommodate the applicant’s contention. 

Whether the evidence should be excluded by exercise of discretion?  

44. [44]
    Accordingly, no occasion arises for the exercise of the discretion recognised in Bunning v Cross.^[40] However and had the position have been different, it would have been necessary to note the underlying rationale for the recognition of such a discretion:

“What Ireland involves is no simple question of ensuring fairness to an accused but instead the weighing against each other of two competing requirements of public policy, thereby seeking to resolve the apparent conflict between the desirable goal of bringing to conviction the wrongdoer and the undesirable effect of curial approval, or even encouragement, being given to the unlawful conduct of those whose task it is to enforce the law. This being the aim of the discretionary process called for by Ireland it follows that it by no means takes as its central point the question of unfairness to the accused. It is, on the contrary, concerned with broader questions of high public policy, unfairness to the accused being only one factor which, if present, will play its part in the whole process of consideration.”^[41]  

45. [45]
    In this instance and had illegality been established as to the seizure of the phone, any undesirable effect of curial approval and encouragement would be in respect of a mistaken belief that the constable was acting pursuant to s 29 of the PPRA, in circumstances where, as have been noted above, reasonable minds could differ as to whether he effectively did act with that authority and little by way of formality required for detention under the section.  
46. [46]
    In this context, the broader issue as to whether there might have been compliance with the law, by obtaining a search warrant, is also of some relevance, but the more direct consideration is to note that compliance with the law may have occurred as simply as the police officer adding to what occurred, an assertion to the effect that he was then detaining the applicant in order to seize the phone.  
47. [47]
    Otherwise, it may be noted that serious offences are alleged and the evidence sought to be admitted is both cogent and probative as to a significant motive for the alleged offending, in recorded assertions of the applicant herself.  Further, the cogency of that evidence has not been affected by any police conduct.  
48. [48]
    Accordingly, it would have followed, in such circumstances, that it was not appropriate to exclude this evidence, in such an exercise of discretion. 
49. [49]
    Whilst and for the applicant, there was a further (but only generalised) submission appealing to an exercise of the discretion which the High Court has just recently identified as the “Lee discretion”,^[42] this was neither at the forefront of the applicant’s final contentions and nor was anything identified that would introduce or create unfairness in the trial, if what has been identified as the relevant and otherwise admissible text messages, are admitted.

Conclusion 

50. [50]
    The conclusions are that it has not been established that the constable acted illegally in obtaining possession of and then examining and extracting anything recorded on the applicant’s phone and no occasion arises for the exercise of any discretion to exclude the evidence as to any relevant recording. 
51. [51]
    Accordingly, the application is dismissed