R v Deacon[2021] QDCPR 8

DISTRICT COURT OF QUEENSLAND

Introduction

1. [1]
   This is an application by the defence under section 590AA of the Criminal Code 1899 (Qld) to exclude mobile phone evidence obtained by the police (and subsequent questioning about it) on the basis of the exercise of the unfairness discretion^[1] and on public policy grounds, namely that the evidence was unlawfully obtained.

Charges

2. [2]
   The defendant is charged with one count of trafficking in cannabis between 27 August 2019 and 7 February 2020 at North Lakes or elsewhere; five counts of supplying a dangerous drug; one count of possession a dangerous drug in excess of 500 grams, one count of possessing a dangerous drug and possessing anything used in connection with trafficking of a dangerous drug.

Crown evidence

3. [3]
   The discovery of the offences arose out of the execution of a search warrant on the defendant’s house at North Lakes on 6 February 2020.
4. [4]
   The search warrant is dated 5 February 2020.^[2] The warrant was issued by a Justice of the Peace under section 151(a)(i) of the Police Powers and Responsibilities Act 2000 (Qld) (“PPRA”) . It enabled the police to search the defendant’s residence and to seize inter alia phones.  
5. [5]
   Officer Mamril in his statement dated 22 April 2020 assisted with the execution of a search warrant and used his body worn camera to record what happened. He says he observed Senior Constable Van den Berg give all of the persons present their rights and cautions under the PPRA. He assisted with a search of the dwelling and located six large plastic bags of green leafy material, a small plastic container with green leafy material, a Cryovac machine, a blister pack containing six tablets of Diazepam and loose Australian currency on the bench and in a cutlery draw. He was also given a mobile phone belonging to the defendant. He scanned through the phone and took several photos of the phone and messages on the phone.
6. [6]
   Officer Van den Berg in his statement dated 16 March 2020, confirms he executed the search warrant and activated his body worn camera as well. He says in his statement he cautioned both the defendant and his girlfriend in accordance with the PPRA. The defendant declared he had cannabis for personal use in the pantry and a number of items were located including six large bags of green leafy material, a small container with green leafy material, a Cryovac machine, a set of scales and a scale check weights, a blister pack with Diazepam and $18,860 in Australian currency on the kitchen bench, in the cutlery draw and in the defendant’s vehicle. He located the defendant’s mobile phone between the mattress and the headboard. He had a quick look at the phone’s contents and observed the defendant was using a number of secure messaging applications. It was working. He handed the phone to Officer Mamril who took photos of the messages. The money was placed in three tamper proof bags. He gives evidence of the weights of the cannabis. He took the mobile phone to the Petrie Police Station and conducted a cellebrite download of the phone’s contents. At the completion of the download he conducted a check which showed that the messages using messaging and social media applications were not captured. However, a number of those were photographed. The defendant later declined a record of interview.
7. [7]
   The footage of the execution of the search warrant dated 6 February 2020 was tendered as Exhibit 9.^[3]
8. [8]
   At the commencement of the execution of the search warrant Officer Van den Berg told the defendant of the search warrant. The following exchange occurred:^[4]

Van den Berg: Here’s a copy of the search warrant and so that’s that and there’ll over the shop. And here’s a notice too that outlines your rights and obligations ok. Guys so you are detained for the search warrant. The search warrant’s in relation to drugs. Before we start anything I’ve got to give you some rights ok. You guys all have the right to remain silent which means you don’t have to say anything, answer any questions or make any statements unless you wish to do so. However, if you do say something or make any statements it may later be used in evidence do you understand.

Female speaker: Yep.

Deacon: Yeah.

Van den Berg: Scott do you understand that?

Deacon: Yeah.

Van den Berg: And Lowana was it?

Female speaker: Yeah.

Van den Berg: You also have the right to telephone or contact a friend or relative , to let them know where you are, to arrange or attempt to arrange to have them present during questioning. You also have the right to telephone or contact to a lawyer or solicitor of your choice, let them know where you are, and to arrange or attempt to arrange to have them present during questioning. If you’ve got any questions during this search warrant, either ask myself or the senior officer, Senior Constable Clairet Desribes okay or ask any the officers okay?

Female speaker Yeah.

Van Den Berg  Part of being detained, you’re not free to move around. If you need to do anything let us know. Just ask one of us okay? If you do obstruct it is an offence.

Deacon Yeah.    

9. [9]
   At this point the defendant declared there was cannabis in the cupboard and admitted it was possible there were large sums of money in the house. He said there was no “meth” in the house. The police got him a bottle of water. There was discussion about the amount of cannabis. The officer then asked them where their mobile phones were and the defendant said he thought his phone was in the room. Later the officer said he would “grab” the phone when they searched his bedroom. ^[5]
10. [10]
    The defendant admitted the cannabis was “just mine”.^[6] The defendant said he was earning money mowing lawns for a mate. He said the money they found was being built up over months and months.^[7] The defendant denied selling cannabis.^[8] They then discusses collectibles.^[9]
11. [11]
    Once they got to the defendant’s bedroom the following exchange occurred:^[10]

Van den Berg Phone. Okay. Bud what’s your PIN code for your phone? Ah is it a PIN or a pattern? What pattern?

Deacon So it’s…

Van den Berg [Indistinct] pattern. What’s the pattern?

Deacon  I dunno the pattern.

Van den Berg You must know your pattern ‘cause every forty-eights you’ve gotta put the pattern in again.             

Deacon No only …

Van den Berg Okay 

Deacon  You only have to put the pattern in if you turn it off. There you go.             

Van den Berg Is it working? Oh it’s fancy. My phone doesn’t have that. Cool. Ah so you don’t remember what your pattern is?

Deacon Pardon?

Van den Berg Don’t remember what your pattern is? 

Deacon No.

12. [12]
    The Officer then asked the defendant for his password for Sure spot^[11] but the defendant said he didn’t know it. The officer then identified that the application Threema^[12] had drug related messages to the defendant.^[13] The officer then asked the defendant questions about these messages. The defendant admitted he bought high quality “weed”.^[14] He claimed the messages found by the officer were what he was paying.^[15]
13. [13]
    Then later the officer explained that he had found a lot of drug messages on the phone.^[16] The defendant responded he would like to speak to a lawyer before answering questions.^[17] Van den Berg indicated this was ok.
14. [14]
    The defendant said the cannabis was for his personal use.^[18]
15. [15]
    The officer then asked Mc McDowell for the PIN number for her phone and she gave it to him.^[19]
16. [16]
    Later the officer said:^[20]

Van den Berg: In relation to your phone cause it opens from your facial recognition do you recall what the passcode is? Or else our techs may have to pull your phone to pieces to get into it.             

Deacon Yeah I do apologise I don’t know my passcode.

Van den Berg Okay, no that’s okay, I’m just asking you okay?  

17. [17]
    Later the defendant noted he was not allowed to go out for a smoke.^[21]
18. [18]
    There was then a discussion about the cash found. The defendant said that he had been putting the cash away for months.^[22] $10,925 was found in the drawer.^[23]
19. [19]
    He later said he would only sign the field receipt as long as it was not an admission.^[24]
20. [20]
    Officer Van den Berg gave evidence in the Magistrates Court on 11 August 2020.^[25]
21. [21]
    In the Magistrates Court he said that he had read provisions of the PPRA. He admitted that to search a person’s mobile phone would be an invasion of privacy.^[26] He agreed that the warrant in this matter did not have an access information order.^[27] He agreed that to get access information he needed to apply for it through a judicial officer.^[28]
22. [22]
    He was also aware that at the time of applying for the warrant he would potentially be seizing phones.^[29] He believed he had the power to request a person to open their phone with their consent.^[30] He did not accept he had to tell them that they did not have to comply.^[31] He acknowledged that the PPRA only gave him the authority to open someone’s phone with a Magistrate’s or Judge’s authority.^[32] He agreed that he asked the defendant for the PIN code, the Wckr details and the password for sure spot and that he did not tell him that he did not have to provide the details during those questions. He did tell him that he did not have to answer questions at the beginning of the interview.^[33]
23. [23]
    He said his intention was to get access consensually.^[34] He did not believe the warrant issued by the Justice gave him the power to repeatedly request for phone details.^[35]
24. [24]
    Officer Van den Berg gave evidence before me.
25. [25]
    He said that he gave the notice to occupier to the defendant which outlined his rights and obligations.^[36] He issued the PPRA cautions.^[37] The defendant appeared to understand these.^[38] He was involved with locating the phone in the bedroom. When he mentioned obstruction to the defendant what he was talking about was hiding evidence or pushing the police away.^[39] The officer did not ask the defendant about the phone prior to warning him.^[40]
26. [26]
    The officer was not concerned about the defendant’s understanding of his rights.^[41]
27. [27]
    The officer was not cross examined.

Defence evidence

28. [28]
    The defendant has filed an affidavit dated 2 February 2021.^[42] He says that he thought he did not have a choice but to provide the access information to his phone. He felt overwhelmed by the situation. He would not have provided it if he was aware he had a choice not to.
29. [29]
    The defendant also gave evidence before me.
30. [30]
    He said in his evidence that he felt like he had no option but to unlock his phone.^[43] He was told by the police they were in charge. He was also told he could face charges if he obstructed the police.^[44]
31. [31]
    In cross examination he agreed he was given a copy of the search warrant and the notice to occupier.^[45] He agreed he raised the fact there was no methylamphetamine in the house.^[46] Whilst the police were friendly he was still anxious.^[47] He agreed a police officer got him a bottle of water.^[48] Whilst he agreed the police were not yelling at him they were authoritative.^[49] He felt he was in an uncomfortable situation.^[50]
32. [32]
    He agreed he was able to ask the police questions.^[51] He volunteered to check the safe.^[52] The police officer did not threaten him to open the phone but he believed he had no option but to open the phone.^[53] At no stage did he say he was feeling overwhelmed.^[54] He was later able to talk to the police about his anxiety.^[55] He was not directed to open the phone.^[56] This was not the first time he had dealt with the police, he had been present at a police raid in 2018 but was not sure if there was a warrant.^[57] He agreed that later during the raid he expressed concerns about signing the field property receipt as it could be an admission.^[58]
33. [33]
    He agreed that at the beginning of the search warrant execution he was warned he did not have to answer any questions or make any statements unless he wished to do so.^[59] He denied giving access to the phone voluntarily.^[60]

Other relevant evidence

34. [34]
    The defendant has a criminal history. He was 22 years of age at the time of the search and whilst young, was not a teenager. Also, on 23 April 2018, he was previously the subject of a search warrant in relation to dangerous drugs. Police executed the search warrant and found nine grams of cannabis in a water pipe. No admissions were made by him and he later pleaded guilty to the offences.

Submissions

Defendant

35. [35]
    In its written submissions^[61] and oral submissions the defence submits that the obtaining of the access to the phone was unlawful and therefore the evidence relating to this and related conversations should be excluded. It is submitted that the PPRA makes it clear that for access to a digital device there should be judicial oversight. It is submitted that in this case that there was no consensual access and therefore the access was unlawful. The defence relies on the Human Rights Act 2019 (Qld).
36. [36]
    It is submitted that there was a deliberate disregard of the law in this matter. The law could easily have been complied with. The legislation should be interpreted strictly and the public interest favours the exclusion of the evidence.

Crown

37. [37]
    The crown in its written submissions^[62] and oral submissions submits that the defendant was appropriately warned. The police acted entirely appropriately in the search. The defendant consented to his phone being accessed. There is no illegality.
38. [38]
    Even if it could be said the access was illegal the Bunning v Cross^[63] principles favour the admission of the evidence.

Statutory framework

39. [39]
    Section 5 of the PPRA notes inter alia that the purpose of the Act is to ensure fairness to and to protect the rights of persons against whom police exercise powers under the Act. Another purpose of the Act is to provide powers for effective modern policing and law enforcement. 
40. [40]
    Section 7 of the PPRA notes that it is the Parliament’s intention that police officers should comply with the act.
41. [41]
    Section 150 of the PPRA enables a police officer to apply for a search warrant to a Justice of the Peace. Once granted, the police officer has the powers mentioned in section 157 of the PPRA.
42. [42]
    An officer does not have the power to involuntarily access a mobile phone which is pass-coded.
43. [43]
    In order to access such a mobile phone, under section 154 of the PPRA, the officer may apply to a Magistrate or Judge for an order to give the police officer access to the storage device^[64] and access information and any other information or assistance necessary for the officer to be able to use the storage device to gain access to the stored information.
44. [44]
    If this power is in the warrant, the warrant may also include a provision that a “specified person” give the officer the information or assistance.
45. [45]
    If the warrant does not have a section 154 power specified in it, and if the storage device is seized then the officer may then apply for an order under section 154A of the PPRA that the specified person given the officer the information or assistance to access the storage device. If they fail to do so without reasonable excuse then that failure may be dealt with under section 205A of the Criminal Code. Section 205A provides for the offence of failure to comply and carries a maximum penalty of five years. Privilege against self-incrimination is not a reasonable excuse.
46. [46]
    However legal professional privilege may be.^[65]
47. [47]
    I also note that the Police Operational manual^[66] provides that where a search warrant is executed and police have seized a storage device and the search warrant did not contain a section 154 PPRA power, then the officer may make a section 154A application. If the device is seized and taken away and access is required then the officer is to make an application under section 154A.
48. [48]
    In George v Rockett^[67]the High Court noted that a search warrant authorises the invasion of premises without the consent of the person in lawful possession. It was noted that there should be strict compliance with the statutory conditions relating to the issue of search warrants.

Discussion

49. [49]
    I listened carefully to the recording in this matter.
50. [50]
    On my assessment of the entirety of the recording, whilst the defendant may have been nervous, understandably bearing in mind the cannabis and cash in the house and the messages on the phone, I do not think he was overwhelmed as he claimed in his evidence.
51. [51]
    The defendant did not appear to be intoxicated or impaired. I find the police did not employ aggressive or coercive acts to obtain the information rather the officer merely asked and the defendant provided it. On occasions during the interview the defendant demonstrated he was not overwhelmed by the questioning by being able to make denials. For example at one point the defendant denied he was selling cannabis. The officer, on my assessment, was upfront and frank with the defendant. He also chose not to answer some of the questions. He was cautious about signing the field property receipt.
52. [52]
    I also take into account this was not his first involvement with police in such a situation.
53. [53]
    I did not consider the defendant was misled by the officer as to the issue of obstruction. The officer mentioned the issue of obstruction in connection with moving around the house. If the defendant believed he could be guilty of obstructing by not accessing the phone that was his mistake not engendered by the police officer.
54. [54]
    Where there is a conflict in the evidence I accept the evidence of Officer Van den Berg in preference to that of the defendant.
55. [55]
    In my view, the officer complied with section 418 of the PPRA and regulations 23 and 26 of the code in this case.
56. [56]
    As required by section 156 of the PPRA, the warrant outlined all relevant information and the officer pursuant to section 158 of the PPRA gave a copy of the warrant and a notice to occupier to the defendant prior to the commencement of the search.
57. [57]
    The fact is a police officer can ask for permission to access a person’s mobile phone and there is nothing improper about the police officer asking for access. A person is entitled to refuse to provide a pin or unlock the phone without a section 154 order. The fact is there is no requirement in the PPRA for a police officer to tell a person they do not have to provide the details for access to a phone.
58. [58]
    In R v Ford^[68] Flanagan J noted at [50]:

There is no dispute that there was a proper basis for the applicant’s mobile telephone to be seized. The issue however, is whether the applicant’s provision of his PIN, which enabled access to the information stored on his mobile, constituted actual consent to this search. Ordinarily there is no difficulty with a police officer asking a suspect for his or her PIN code for the purposes of accessing stored mobile telephone information.

59. [59]
    In Ford the evidence was excluded but the difference in Ford was the officer had not provided any warnings to the suspect before the relevant conversation.
60. [60]
    I consider the decision of R v Bossley^[69] to be of assistance here. In that case although an officer did not have a search warrant, he searched the bum bag of the offender who was on the way to a music concert. Dalton J held that there were no grounds raising a suspicion about the offender which would have entitled the police to search his bag. However there was no issue if the offender consented to the search of the bag.^[70]    
61. [61]
    Her Honour noted that consent will always be an answer to a charge of trespass.^[71]  
62. [62]
    Ultimately her Honour held that the defendant consented to the search.
63. [63]
    I do accept that sometimes there may not be true consent as discussed in R v Lavery.^[72] However I find in this case that the defendant did have a choice to refuse access. He was warned at the start. He understood those warnings. He was selective in the questions he answered. He knew what he was doing. 
64. [64]
    In this matter the defendant voluntarily consented to opening the phone.
65. [65]
    He was not mislead into it. He was not bullied or coerced. He was told he did not have to answer questions. He was told he could see a friend or lawyer. On the crown case he chose to lie to the police at times and chose not to answer some questions.
66. [66]
    In light of my finding the defendant consented to opening the phone, I find there was no illegality by the police here.
67. [67]
    On that basis I would dismiss the application. But even if I am wrong on this conclusion I would have admitted the evidence anyhow for the following reasons.

Bunning v Cross

68. [68]
    In my opinion, the principles in Bunning v Cross^[73] favour the admission of the evidence.
69. [69]
    First I find there was no deliberate or reckless disregard of the law by the officer. On my assessment the officer considered there was nothing wrong in asking for access. If he was in error as to this it was an honest error. I find the police officer genuinely believed he could ask for access. The fact is the defendant was warned he could contact the lawyer and he did not. He was also warned he need not answer questions.
70. [70]
    Second any illegality has not affected the cogency of the evidence here. The evidence is in the form of messages on the mobile phone and the defendant’s responses concerning these. The evidence is crucial to the crown’s case on trafficking.
71. [71]
    Thirdly it is true that the law may have been complied with by obtaining a section 154A PPRA order reasonably easily, but this consideration cuts both ways. In my view in light of all of the evidence it would have been inevitable a judge or magistrate would have made such an order and if so we would be in the same position with the evidence.
72. [72]
    Four is the nature of the offences charged. The offences here are serious in nature. Drug offending is prevalent and serious in our community and trafficking in dangerous drugs is one of the most serious of crimes.^[74]
73. [73]
    Another factor to be considered is the Human Rights Act 2019 (Qld). The defence relies on sections 19, 25 and 29. It is true that section 48 requires the court to interpret the law as far as possible consistent with the rights mentioned in the Act. It is also true that in Victoria the Charter has been held to apply to courts and tribunals.^[75]  However section 13 notes that Human Rights may be limited when the limit is reasonable and justifiable. In this case the limit is reasonable and justifiable when one considers the importance of the evidence obtained in this matter. 
74. [74]
    I finally turn to the exercise of the fairness discretion. The defence argument is fairly much on the same grounds as mentioned previously.
75. [75]
    With respect to the general fairness discretion, I note in Swaffield v R^[76] the plurality said that the issue is not whether the police acted unfairly but whether it would be unfair to use the statement against the accused. Unfairness is concerned with the accused’s right to a fair trial. One issue to be considered it the issue of reliability but this is not the “sole touchstone”. However unreliability is an important aspect of the discretion.^[77]
76. [76]
    Likewise in Tofilau v The Queen^[78] it was said that unreliability is an important aspect of the unfairness discretion. It was also noted that the focus remains on the fairness of using the statement rather than on disciplining the police or controlling investigative methods.^[79] 
77. [77]
    I also note in EM v The Queen^[80] it was noted that when one considers “unfairness” it is in the interests of the community that all crimes should be fully investigated with the object of bringing malefactors to justice and such investigations must not be unduly hampered.
78. [78]
    In this case I do not consider the evidence on the phone to be unreliable. It provides real evidence of drug related messages which have not been fabricated. I also do not consider there is a risk of a miscarriage of justice if the evidence is not excluded. There is no risk a fair trial cannot be achieved.
79. [79]
    Balancing all of these factors I consider on balance, in the exercise of my discretion, the evidence should not be excluded.

Order

1. 1.The application is dismissed.