R v Varga[2015] QDC 82

DISTRICT COURT OF QUEENSLAND

1. [1]
   The applicant Benjamin Julian Varga (“the accused”) is charged with one count of trafficking in a dangerous drug, ten counts of supplying a dangerous drug, one count of possessing a dangerous drug and one count of possessing a thing used in connection with trafficking in a dangerous drug.

2. [2]
   This pre-trial application is primarily about whether the police, in executing a lawfully issued search warrant, exceeded the power provided by the search warrant, by accessing information on a mobile phone that was found by police in the search of a residential premises.

The Search: synopsis

3. [3]
   The search warrant authorised a search power, inter alia, to seize property found in residential premises at which the accused and others lived. The accused was not named in the search warrant. The persons named were two others who lived at the premises, but they were not present when the search warrant was executed on the accused.

4. [4]
   The accused in response to a question as to whether he had anything to declare, declared a water pipe and the location of some dangerous drugs. His mobile phone was found by police and it was inspected by a police officer informed him he had found some information in SMS text messages on the mobile phone that he believed were relevant to the commission of offences involving dangerous drugs.

The Issues raised on the application

5. [5]
   The questions for determination are said to involve the construction of s 154 of the Police Powers and Responsibilities Act 2000 (“the Act”), which obliges detained persons to provide the means of access to electronically stored information on devices such as mobile phones, in the following disputed context: whether the police were empowered by the search warrant to access the electronically stored information on the mobile phone that they took possession of, where the accused consented to a police request for the provision of the mobile phone number and password, but in the circumstance that no question was asked of the accused as to whether there was anything on the mobile phone he wished to declare; and in the circumstance of no order pursuant to s 154 of the Act having been obtained.

The Search Warrant

6. [6]
   The search warrant was expressed in what might be called ‘customary terms’ and so far as is relevant, the general powers included the following:

“… power to seize a thing found at the relevant place, or on a person found at the relevant place, that the police officer reasonably suspects may be warrant evidence or property to which the warrant relates”.

7. [7]
   “Warrant evidence or property” that may be seized under that power in the search warrant, included:

“(c)Any document or thing, whether in written or electronic form, used to record the possession and supply of dangerous drugs, namely cannabis, including but not limited to laptop computers, computers, mobile phone…” (my underlining).

8. [8]
   “Warrant evidence” so far as is relevant here is evidence or property relating to “the commission of an offence”: ss 150AA and 150(1) of the Act.

9. [9]
   It was not argued that the search warrant per se was other than regularly issued.

Relevant events and conversations about the mobile phone

10. [10]
    The sequence of the relevant events and conversations between the police and the accused took the following form. I have set these out in some detail because it is relevant to the issues in the application.

11. [11]
    PC Constable Pritchard (“Pritchard”) executed the search warrant on the accused. He detained the accused, cautioned him in the customary terms and asked him if he had anything to declare. The accused nominated a ‘billy’. PC Constable Johnstone (“Johnstone”) located a glass bong in a search. Drugs (cannabis sativa) were also found.

12. [12]
    Johnstone located and took possession of the accused’s mobile phone, saying to Pritchard “… his mobile phone’s just there [in a bedroom]”. Pritchard replied to Johnstone and the accused “we’ll take your phone at the same time” [as the disclosed items and drugs that were also disclosed].

13. [13]
    Johnstone handed the mobile phone to Pritchard, who asked the accused “so this is your phone is it mate?” and the accused said it was. Johnstone said to Pritchard (and to the accused) “Do you need to … ‘cause you might have a chance to get rid of stuff”. Pritchard said “I know. That’s what I’m thinking … may as well keep it“. Johnstone told Pritchard that the phone might have to go on charge (as the battery was low).

14. [14]
    Pritchard said to the accused “Do you know your mobile phone number off heart mate” and the accused replied “No … you have to get it from my phone … if you go to my contacts it should be right at the top.” Pritchard said “yeah … if this phone turns off … is there a …” and the accused replied “there’s no pass code on it, no.” Pritchard said “Even when it turns itself off …” and the accused said “there shouldn’t be, no” Johnstone said “There is a Sim lock” and the accused replied “there is? I wouldn’t know that one cause I don’t turn my phone off”. Pritchard then accessed the mobile phone’s SMS text messages. Pritchard said “You get the charger” and the accused said “Yeah. It’s in my room ….”

15. [15]
    Pritchard administered a further caution and said to the accused “Are you happy to answer questions?” and the accused said “Yeah”. Pritchard said “Also matey, just looking at your text messages … on your phone there … it appears to me that you’re supplying dangerous drugs to people, okay, and they’ve been running up a tick …”

16. [16]
    Another police officer asked Pritchard if he was “going to take [the accused] back for an interview” and Pritchard said “well, he’s gonna have to come back … to have this downloaded” [a reference to the mobile phone].

17. [17]
    In the course of the search Pritchard spoke to another police officer about a text message. He also referred to seizing the phones of the two persons named in the search warrant, “even if there was nothing on” them.

18. [18]
    Further drug related items were found in the premises as the search continued. The other persons returned to the house and were detained and Pritchard asked them similar questions about their mobile phones, phone numbers, sim-locks and passwords. They were each asked for their phone numbers and passwords and complied with the requests. Both persons were told that their phones would be seized because there were “text messages in there that we want to have a look at further” … and money for which legitimate reason for possession were given, was seized because it was found with some drugs, Pritchard saying to them that “… based on some of the text messages you can see why we’d be interested in that money.” Pritchard said to the accused that he had a reasonable belief that there may be evidence stored in the phone about the commission of drug offences. Property receipts were given to each of the persons and to the accused.

19. [19]
    At the police station he attempted a forensic download of the information on the mobile phone of the accused but it was unsuccessful [there was damage to the phone]. He subsequently conducted an electronically recorded interview with the accused, the detail of which is not relevant to the grounds of this application save that the accused made admissions and confessions about the supply of dangerous drugs, by reference to the information stored on the mobile phone. Pritchard subsequently reviewed the text messages and the accused was charged with the current offences.

Section 154

20. [20]
    The section is expressed in the following terms:

“154Order in search warrant about information necessary to access information stored electronically

(1)If the issuer is a magistrate or a judge, the issuer may, in a search warrant order the person in possession of access information for a storage device in the person's possession or to which the person has access at the place—

(a)to give a police officer access to the storage device and the access information necessary for the police officer to be able to use the storage device to gain access to stored information that is accessible only by using the access information; and

(b)to allow a police officer given access to a storage device to do any of the following in relation to stored information stored on or accessible only by using the storage device—

(i)use the access information to gain access to the stored information;

(ii)examine the stored information to find out whether it may be evidence of the commission of an offence;

(iii)make a copy of any stored information that may be evidence of the commission of an offence, including by using another storage device.

(2)In this section—

access information means information of any kind that it is necessary for a person to use to be able to access and read information stored electronically on a storage device.

storage device means a device of any kind on which information may be stored electronically.

stored information means information stored on a storage device.”

Submissions

21. [21]
    Mr Collins submitted that s 154 of the Act was a discrete and specific enactment dealing with accessing a storage device and examining the stored information on it. He submitted that to suggest that those powers were otherwise generally available to police who exercise a search warrant and who do not request and obtain specific permission (by a s 154 order) to access and inspect would render the section superfluous. Further, he submitted that no post search approval was sought in respect of the exercise of a search power.

22. [22]
    He submitted that the evidence of Pritchard in an Addendum Statement of Witness made after the pre-trial application was filed and the grounds were known, should be discounted insofar as his having “reasonable grounds” for suspicion that an indictable offence had been committed and should be given no weight, particularly in the circumstance that the accused was not named in the search warrant and had declared mere possession of cannabis and a bong only.

23. [23]
    Further, he submitted that Pritchard’s statement in the Addendum Statement of Witness that “I am aware that mobile telephones are commonly used as a way of communication between persons in order to either source and/or supply dangerous drugs to and from other persons”, demonstrated that he should have sought an order under section 154 of the Act. He submitted that the police had no power to go beyond mere seizure of the mobile telephone.

24. [24]
    Ms Payne submitted that Pritchard’s failure to seek an order pursuant to s 154 of the Act was a mistake and nothing more; that he had formed “reasonable grounds” for a suspicion; that the power in the search warrant in paragraph (c) included seizure and search; and referred to Darwen v Smith [2007] QDC 030, where the District Court Judge did not overturn the decision of a Magistrate who decided that the “seizure” of a mobile phone was not made until after the police officer had taken possession of the mobile phone and inspected text messages on it, as authority for that proposition.

25. [25]
    Alternatively she submitted that if the evidence was found to have been unlawfully obtained it should be admitted by an exercise of discretion on the Bunning v Cross (infra) principle.

Discussion

26. [26]
    The issues are, in simple terms, whether the stored information on the mobile phone was lawfully obtained and was admissible as evidence; and, if not, whether it was admissible on the exercise of discretion.

27. [27]
    The applicant in this case specifically relies on a premise that s 154 of the Act provides the only power to search a mobile phone of a person lawfully detained when a search warrant is executed on premises where the person is an occupant.

28. [28]
    S 154 of the Act is a specific section referable to what lawfully may be done, in this case with a mobile phone, once it is in the possession of a police officer and seized (or for that matter, vice versa), but otherwise not able to be accessed for a search or inspection of stored information, because it is protected by a password, encryption code or such like.

29. [29]
    Whilst a written document can be read without any access issues arising with respect to the information in it, a mobile phone may require a ‘search’ in or inspection of, information on the mobile phone that is password protected or in encrypted folders or files.

30. [30]
    S 154 of the Act was enacted to overcome this problem where police could not obtain a password or code from the owner or person in possession of an electronic storage device. It is plainly an additional power beyond those generally available in a search warrant.

31. [31]
    The Police Powers and Responsibilities and Other Acts Amendment Act No 26 of 2006 refers to s 171A (now s 154 of the Act) as one that “… outlines the orders that can be made by a magistrate or a judge when issuing a search warrant in the context of a storage device.” The amending section 171A was assented to on 01 June 2006 and was proclaimed on 21 July 2006.

32. [32]
    The legislative purpose of the section is described explicitly in the Explanatory Notes in the Police Powers and responsibilities and Other Acts Amendment Act No 26 of 2006, namely:

“3.Providing police officers with the ability to obtain a warrant to obtain decryption for evidentiary purposes

It is considered that this amendment is essential to ensure police officers have sufficient powers to investigate persons who engage in activities such as paedophilia, drug trafficking and identity fraud. In many instances, access to information stored on a suspect’s computer, electronic teledex, mobile phone or similar electronic device is protected by a password or the information is encrypted.  In the absence of a password or decryption code, it is often impossible to obtain the stored evidence to prosecute an offender. The requirement to provide the password or decryption code to a computer or mobile phone is not a telecommunication interception, as access will only be gained to data that has already been downloaded or received, e.g., files stored on a DVD, CD or the hard disk of a computer or SMS messages held on the storage space of a mobile phone.

Therefore, it is considered that the provision of a power to require a person to provide a password or decryption code that may lead to the gathering of evidence of a serious criminal offence is a matter in the public interest and will stop criminals from escaping prosecution merely because crucial evidence is initially concealed electronically from police.”

(my underlinings).

33. [33]
    The search warrant in this case was issued by a “justice”, not by a “magistrate or a judge”. So much is apparent from the “Justice of the Peace (Qualified)” stamp on the face on each of the three pages of the search warrant. S 154 of the Act is limited to an “issuer” who is a “magistrate or judge”. Hence a s 154 power could not have been provided in the search warrant in this case and is in fact not provided.

34. [34]
    The heading to the section, namely “Order in search warrant about information necessary to access information stored electronically” (my underlining), makes the purpose of the section clear in its own terms: it refers to ‘access information’ that is required to enable the storage device to be “opened” so as to reveal the stored information. It does not deal with access to an electronic storage device where the “access information” is otherwise known or provided. It does not prevent a request being made in the first instance by a police officer which may be voluntarily or by consent complied with.

35. [35]
    S156 (3) of the Act, which proscribes what the search warrant must state, provides that “if a magistrate or a judge makes an order under … section 154, the warrant must also state that failure, without reasonable excuse, to comply with the order may be dealt with under the Criminal code, section 205.” Hence the exercise of the power has potentially significant consequences and non-compliance with the order is punishable as a criminal offence, namely ‘disobedience to a lawful order issued by a statutory authority’.

36. [36]
    The questions that arise for my consideration and determination in this application are:

• Whether Pritchard had a reasonable suspicion that there may be stored information on the mobile phone, about dangerous drugs;

• Whether s 154 is limited to a power solely to simply make a request and to an obligation upon a person to provide ‘access information’, in respect of a storage device, to a police officer (my underlining);

and

• Whether s 154 also extends to a power to simply access information on a storage device, where no ‘access information’ is necessary: that is, where there is no password or encryption code that prevents or restricts access to information stored on the storage device. In other words, is such a power implicit in the customary powers provided in the search warrant (such as referred to in paragraphs [6] and [7], supra), or where a person voluntarily provides a password or encryption code or otherwise consents to the police officer accessing the stored information.

Discussion

Reasonable suspicion

37. [37]
    Did Pritchard have any proper or lawful basis for a “suspicion on grounds that are reasonable in the circumstances” at the time he seized the mobile phone and opened it?

38. [38]
    In R v Bossley [2012] QSC 292, Dalton J wrote, at [14]:

“The term ‘reasonably suspects’ is defined in Schedule 6 to the PPRA as meaning, ‘suspects on grounds that are reasonable in the circumstances’.  There is also well-established common law authority in relation to both the concept of suspicion and the concept of reasonable suspicion. The meaning of suspicion in this context is discussed by the High Court in George v Rockett. A suspicion and a belief are different states of mind. A suspicion is a state of conjecture or surmise. It is more than idle wondering. It is a positive feeling of apprehension or mistrust, but it is a slight opinion within sufficient evidence. Facts which reasonably ground a suspicion may be quite insufficient to reasonably ground a belief. Nonetheless, to have a reasonable suspicion some factual basis for the suspicion must exist. There must be sufficient factual grounds reasonably to induce the suspicion. The facts must be sufficient to induce the suspicion in the mind of a reasonable person. The suspicion must be reasonable, as opposed to arbitrary, irrational or prejudiced. If a young man is driving a smart car with some panel damage it is not sufficient to give rise to a reasonable suspicion.”

39. [39]
    I find that Constable Pritchard did have a suspicion on grounds that are reasonable in the circumstances and despite the matter of a reasonable suspicion having only been referred to in an Addendum Statement of Witness and after the specific grounds of the Application had been revealed. If it had been a matter he considered relevant in the search of the mobile phone one would expect reference to have been made in the first Statement of Witness. However, that was unnecessary because a reasonable suspicion is readily apparent from the conversations he had with the accused in the course of the search.

Was the evidence lawfully obtained?

40. [40]
    In R v Peirson [2014] QSC 134, police seized a mobile phone in the street and search it.  That power was authorised by s 29(1) (b) of the Act, which refers to searches where no search warrant exists.  That is a different scenario from this case and does not assist the respondent at all.  S 29(1) (b)  specifically empowers a police officer, where there is no search warrant, to search “anything in the person’s possession”.

41. [41]
    Keane J (as he then was, in the Supreme Court of Queensland) in R v LR [2006] 1 Qd R 435 held at [41], referring to s 5 of the Act, that:

“One of the main reasons advanced for the passage of the PPR Act in 2000 was to ‘provide powers necessary for effective modern police and law enforcement’.  However, it was also the intention of the legislature to ‘ensure fairness to, and protect the rights of, persons against whom police officers exercise their powers…’ ”

42. [42]
    In my view s 154 is explicitly directed to the first reason referred to by his Honour.

43. [43]
    There are many authorities that deal with evidence unlawfully obtained pursuant to search warrants and the general principles drawn from them apply equally to the circumstances of this case, although there is no issue involving search warrants or post-search approval in the circumstances here: See R v Christensen [2005] QSC 279 at [12] wherein Holmes JA iterated “The importance of strict adherence to the statutory requirements in the context of search warrants has repeatedly been emphasised”. My view about strict compliance in this case will be apparent from my findings (infra).

44. [44]
    No mala fides are alleged about the conduct of the police officers. No ‘deliberate flouting’ of the law is alleged. The incidence of SMS texts on mobile phones being a fertile source of information about the commission of indictable offences involving dangerous drugs, in my judicial experience of such frequency, is that it must be common knowledge amongst police officers. So much is readily able to be inferred, in this case at least, from the conduct and statements of Pritchard, Johnstone and other police officers. That is why they asked questions about information stored on the accused’s mobile phone. If the information necessary to access the content of the mobile phone had not voluntarily or otherwise by consent been given to Pritchard then the police could not have obliged the accused, or any other person for that matter, to divulge the access information, other than by resort to the specific power provided by an order made by a magistrate or a judge pursuant to s 154.

45. [45]
    However, in this case the accused was co-operative. He responded to the questions asked about the mobile phone by volunteering the access information. Hence resort to an order pursuant to s 154 was not necessary. It seems to me that he made a ‘conscious decision’ so to do.

46. [46]
    Where ‘consent’ to a search is given, “that will be an answer to any allegation of unlawfulness of a search”: Dalton J in Bossley at [14], (referring to Malone v Metropolitan Police Commissioner [1979] Ch 344, and the ‘implication’ from discussion by Megarry VC at 369.)

47. [47]
    In Halliday v Nevill & Anor (1984) 155 CLR 1, the majority (Brennan J dissenting) held that a police officer had an implied or tacit license to enter the driveway of premises that were not locked or barred by an obstruction in any way, to arrest a man. The question is essentially one of fact.

48. [48]
    In Coco v R (1993-1994) 179 CLR 427, the Court allowed an appeal against a conviction that involved the use of evidence obtained by means of a listening device installed and maintained within a private premises. Mason CJ and Brennan, Gaudron and McHugh JJ wrote, at 435-436:

“In accordance with [the principle that every unauthorised entry upon private property is a trespass] a police officer who enters or remains on private property without the leave or licence of the person in possession or entitles to possession commits a trespass unless the entry or presence on the premises is authorised or excused by law”

and

“it has been said that the presumption is that, in the absence of express provision to the contrary, the legislature did not intend to authorise what would otherwise have been tortious conduct. But the presumption is rebuttable and will be displaced if there is a clear implication that authority to enter or remain on private property was intended.”

49. [49]
    As Dalton J wrote in Bossley at [17], “… a police officer may ask a question of any person, just as any other member of the community may. The person questioned is not obliged to answer.”

50. [50]
    The issue of ‘consent’, in this context, was referred to in Bunning v Cross. See Barwick CJ at 63-64 (“… nothing … precludes the voluntary submission of a person to the breathalyser test”), Stephen and Mason JJ at 67 (referring to “… whether or not, when the appellant took the breathalyser test, he did so quite of his own volition; if so, no question would have arisen of his being unlawfully required to submit to the test …”), Jacobs J at 82 (“… nothing in the Road Traffic Act, 1974 (W.A.) precludes a patrolman or an unauthorised person from asking for a sample of breath of a person willing to give it or from operating the breathalyser apparatus in relation to such a sample.”), but cf Murphy J at 84 (who considered consent was obtained by implied coercion, the appellant having agreed to undertake the test after several refusals so to do).

51. [51]
    However, there is no allegation of a lack of bona fides in this case in the Application and no evidence of any deliberate flouting of the law.

52. [52]
    I do not agree with Ms Payne’s submission that Pritchard made a ‘mistake’. He acted lawfully. However, he would have been in a difficult situation had the accused not volunteered the access information, because he did not have the authority of a s 154 order. A post-search approval (ss 159, 160 and 161 of the Act) may arguably have been obtained. However, in the circumstances I do not need to consider the application of those sections to the search warrant issued in this case.

53. [53]
    I do not agree with Mr Collins’ submission that s 154 has the broad application contended by him. The section deals with a discrete power. It is not made ‘superfluous’ by the exercise of the general power implicit in the search warrant, where a request for access information is given or complied with voluntarily or otherwise by consent.

54. [54]
    I find that the search of the mobile phone for information stored on it was lawful. The evidence drawn from the information stored on the mobile phone was lawfully obtained and is admissible.

Discretionary admission or exclusion

55. [55]
    Whilst I have found that the evidence was lawfully obtained, I should refer to the alternative discretionary basis of admissibility.

56. [56]
    The court has a general discretion to exclude evidence pursuant to ss 98 and 130 of the Evidence Act 1977 and a discretion exercisable on the principles in Bunning v Cross (1978) 141 CLR 54.

57. [57]
    The principles in Bunning v Cross are drawn from the joint judgment of Stephen & Aicken JJ, at pp 78-80:

1Was the unlawful act the result of mistaken belief that the act was lawful, or a deliberate disregard of the law?

2Does the nature of the illegality affect the cogency of the evidence so obtained?

3Was the illegal act the result of a process of deliberate cutting of corners to make the task of the investigators easier?

4How serious is the offence charged?

5Does an examination of the legislation indicate a deliberate intent on the part of the legislature to circumscribe the powers of the police in the interest of the public?

58. [58]
    The authorities since the decision in Bunning v Cross have expanded the number of relevant considerations:

6Is the evidence illegally obtained the only evidence guilt?

7Would evidence likely to be removed or destroyed if its seizure is seriously delayed?

8Would admission of the evidence cause no unfairness to the accused?

59. [59]
    In R v Munck [2010] QSC 416, Philippides J discussed the discretion to admit unlawfully obtained evidence. Her Honour wrote:

“[34] Section 10 PPRA provides that the Act does not affect the common law under which a court in a criminal proceeding may exclude evidence in the exercise of its discretion. On behalf of the Crown it was submitted that, notwithstanding the finding as to the unlawfulness of the search of the applicant’s house, the Bunning v Cross discretion should be exercised in favour of admission of the evidence obtained from the search. That discretion calls for a balance to be struck between competing public interest, which in essence may be summarised as:

‘…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 tasks it is to enforce the law.’” (citing Bunning v Cross).

60. [60]
    The trafficking and the supply in this case might to be said to be arguably at the lower end of the scale. The drug was cannabis. The other persons in the supply chain appear to have been friends or acquaintances of the accused. That is not an uncommon situation. Nevertheless, trafficking per se in dangerous drugs is a serious offence.

61. [61]
    The accused co-operated with the police. He made admissions in a record of interview. There is no unfairness to him in the admission of the evidence.

62. [62]
    If I had found that the evidence of the information stored on the mobile phone was unlawfully obtained, I would have exercised the judicial discretion upon the principles in Bunning v Cross and the subsequent authorities, and admitted the evidence. In that circumstance I would not have had to have specific recourse to the statutory provisions in the Evidence Act 1977.

Observations on previous judgments on this issue

63. [63]
    I have delivered judgments previously about search warrants and the accessing by police of information stored on storage devices (mobile phones) that have been seized or taken into their possession by police officers in the course of a search. The outcome of applications for the exclusion of evidence depends largely upon the facts and circumstances of the case and the application of legal principle or statutory construction, as the case may be, to those facts and circumstances. Accordingly, those judgments have arguably varied in their consideration and outcome.

Conclusion

64. [64]
    It follows that the charges of trafficking in, and supply of, dangerous drugs are made on admissible evidence, whether based on the SMS text messages on the accused’s mobile phone or in any interview subsequently conducted between the police and the accused where relevant admissions or confessions were made, or both.

Orders

1. Application refused.

2. Evidence of SMS text messages and admissions and confessions by the accused with respect to the charges of trafficking in, and supply of, a dangerous drug and possession of a thing used in connection with trafficking in a dangerous drug, was lawfully obtained and is admissible.