R v Baker[2023] QSCPR 6

SUPREME COURT OF QUEENSLAND

Introduction

1. [1]
   The applicant is charged on indictment with one count of unlawfully trafficking in dangerous drugs (methylamphetamine and cannabis) between 13 February 2022 and 16 May 2022; one count of unlawful possession of methylamphetamine; and one count of unlawful possession of cannabis.

2. [2]
   The charges arise out of a search of a vehicle occupied by the applicant and a female friend on the morning of 15 May 2022. The vehicle was stationary in a carpark when an approaching police officer observed the applicant drop something from his hand into the driver side footwell. Both the applicant and the female passenger were then detained and the vehicle was searched for drugs. The applicant was not cautioned at the commencement of the search, but shortly afterwards provided his PIN code to his mobile phone (which was located in the vehicle during the search), in response to a request from an officer to do so.

3. [3]
   Amounts of methylamphetamine and cannabis were located inside the vehicle. Text messages elicited from the mobile phone after the PIN code was provided, revealed evidence of the applicant allegedly supplying dangerous drugs (and ultimately underpin the charge of trafficking). The applicant was then arrested for possession of dangerous drugs, given a caution and taken to the Inala Police Station where he participated in a record of interview. During this interview, the applicant made admissions about aspects of the possession and supply/trafficking offending.
4. [4]
   Against this background, the applicant applies pursuant to s 590AA of the Criminal Code 1899 (Qld), to exclude the information obtained from his mobile phone and all of his record of interview.

5. [5]
   The three issues that emerge for my determination are:

1. First: should the evidence from the mobile phone be excluded on the basis that the PIN code was obtained as a result of the unlawful questioning of the applicant;
2. Secondly and alternatively: should the evidence from the mobile phone be excluded on the basis that it was not voluntarily obtained and its admission is therefore unfair to the applicant; and
3. Thirdly: should all or part of the interview be excluded on the basis that its admission is unfair to the applicant.

6. [6]
   The onus rests with the applicant to satisfy the Court on the balance of probabilities that the evidence was illegally and/or unfairly obtained and that the discretion to exclude it ought to be exercised.
7. [7]
   The onus is on the Crown to demonstrate the applicant’s responses to police were done so voluntarily.

8. [8]
   In order to determine these matters it is necessary to understand the relatively uncontroversial facts in more detail.

Relevant facts

9. [9]
   On 15 May 2022, Plain Clothes Constable Brentin Bennet and Senior Constable Ash Auld from the Inala Police Station were undertaking routine police duties in the Inala police district. While carrying out his duties Constable Bennet was wearing his personal issue body worn camera (attached to his load-bearing vest). Around 8.05am, the officers were conducting mobile patrols along Thrush Street Inala when they observed a green coloured Mitsubishi Lancer registration 180 XNR parked in the carpark on the western side of the Thrush Street Park. Senior Constable Auld conducted checks on a mobile police device and ascertained that the plate attached to the vehicle in fact belonged to a Holden Commodore. Constable Bennet then drove the police vehicle into the carpark and positioned it behind the vehicle. He then exited the police vehicle and activated his body worn camera on two separate occasions. This footage went for about 45 minutes in total and was marked an exhibit in the application. By agreement between the legal representatives only the relevant portions were played in court.^[1]

10. [10]
    Three statements of officers involved on the day were marked for identification before me,^[2] most relevantly from Constable Bennet and Senior Constable Auld. Both of these officers were cross-examined by senior counsel for the applicant.^[3]

11. [11]
    Senior Constable Auld presented as an experienced and confident police officer. He was the senior officer present on the day, having been in the police force for some 15 years. I accept him as a reliable witness. The same cannot be said of Constable Bennet. He was a relatively junior officer by comparison having only finished at the Police Academy around 5 years earlier (at the relevant time). He appeared unsure and hesitant in the witness box and on occasions his answers were non-responsive – not necessarily deliberately, but rather from a lack of focus or understanding. For example, his evidence under cross examination by senior counsel for the applicant was that he understood it to have been a requirement to have warned the applicant prior to asking him that he did not have to provide his PIN code. He was then asked (by me) why, if that was the case, he did not warn the applicant. Constable Bennet responded as follows:^[4]

“Because I was making a determination as to whether I would need to seize that property. It could have been left with his other belongings in the vehicle or he could’ve kept it with him when we went to the police station. We have other access - other measures to access the phone. It could’ve been sent to our telecommunications staff who could’ve gained access to it without said order. I could’ve guessed the PIN and then we would be in a similar situation to where he has not given me access to it, if I’m correct. Is that right, your Honour?”

[Emphasis added]

12. [12]
    Shortly after this, Constable Bennet needed to take a break as he became vague, disoriented and unwell. On his return to the witness box about 10 minutes later, he explained that he was quite exhausted and had not eaten very much. I accept that police officers have difficult jobs that require long and arduous working hours. It is unfortunate that Constable Bennet did not raise how he was feeling with the Crown prosecutor prior to giving his evidence so arrangements could have been made for him to have consumed some nourishment prior to his taking the stand. I accept Constable Bennet did his best to tell the truth and that he made relevant concessions [for example, as discussed below about the fact he should have warned the applicant that he did not say anything before giving his PIN code, and that he was not familiar with the exact working of the relevant caution under the Police Powers and Responsibilities Code]. Overall, I found Constable Bennet to be a rather reluctant witness who seemed bamboozled by the whole process. Despite this, I accept his evidence about what happened on the day.

13. [13]
    Constable Bennet approached the vehicle where the applicant was sitting in the driver seat and a female sitting in the passenger seat. He walked to the driver side door of the vehicle and spoke with the applicant. The applicant was holding a jet lighter in his left hand and a clip seal bag in his right hand, positioned between the driver’s door and the applicant’s thigh. Constable Bennet asked the applicant to lift up his right hand. The applicant dropped what he was holding into the driver’s footwell prior to following this instruction.

14. [14]
    Constable Bennet introduced himself and told the applicant and the female passenger that he was detaining them “in the vehicle for a drug search.”^[5] Shortly afterwards, the applicant and the female passenger were asked to get out of the vehicle. The following exchange then took place:^[6]

Constable Bennett: Have you been detained before?

Applicant:   Yeah.

Constable Bennet:  Yep? You understand what it means?

Applicant:  Yeah.

15. [15]
    The applicant and the female passenger were both personally searched but no items of interest were located on either of them.

16. [16]
    About 16 minutes after he turned on his recording, Constable Bennet undertook a search of the vehicle and he located two clip seal bags containing an opaque white coloured crystal substance in the driver’s footwell, near where he had observed the applicant drop the clip seal bag. He formed the view that this substance was consistent with methylamphetamine. He also located two clip seal bags containing green leafy material tucked between the driver’s seat and the centre console of the vehicle. This material was consistent with cannabis. A clip seal bag containing a white and green coloured capsule was also located. It was, as Constable Bennet is heard to say in the recording played in court, “a good little pick up.”

17. [17]
    Constable Bennet then picked up a blue-coloured LG brand cellular mobile phone that was connected to a charging cable and sitting on the driver’s seat. He unplugged the cable, picked up the phone and casually asked the applicant : “[w]hat’s your pin code mate?” The applicant replied immediately, “twelve, ten”. Constable Bennet repeated these numbers saying “twelve, ten”? The applicant said “yes.” ^[7]

18. [18]
    Constable Bennet initially said that he asked for the PIN code at this point because he wanted to determine if the mobile phone could be left with the applicant’s other belongings or needed to be taken to the police station. But he later accepted that the real reason (which I accept) was because he thought there might be evidence of the commission of indictable offences on the mobile phone, most particularly of the applicant having supplied drugs.^[8]

19. [19]
    Constable Bennet then used this PIN code to access the mobile phone.

20. [20]
    After he accessed the mobile phone using the PIN code just provided to him by the applicant, Constable Bennet did an initial review of the contents of numerous text messages and formed the view that it contained evidence of drug supply between the applicant and various contacts.^[9] It does not appear he told the applicant this at the time. Rather, shortly after accessing the mobile phone he told the applicant that he was no longer detained and was under arrest for possessing dangerous drugs.

21. [21]
    Constable Bennet then provided the applicant with his rights and cautions as follows:^[10]

Constable Bennet: Alright mate. Um, I’m sure you heard me before, but we’re gonna (sic) go back to the police station, okay? So, you’re no longer detained, but you’re now under arrest, alright? Um, and that’s just for possess-,ah, possession of dangerous drugs. So, I’ll read you your rights and cautions before we, ah, chuck you in the car, okay? Have you had those explained to you before? Yep. So, you have the right to remain silent. This means that you don’t have to say anything or answer any questions or make any statements unless you wish to do so. However, if you do say anything, answer any question or make any statements, it can be later used as evidence in court. Do you understand?

Applicant: Yep.

Constable Bennet: You also have the right to telephone, speak to a friend, relative or a lawyer to arrange or attempt to arrange to have them present during questioning. If you want any of those people present during questioning, we can delay it for a reasonable amount of time to allow that to happened, okay? I’m not gonna (sic) ask any question, okay? We’re gonna (sic) go back to the station, um, sort it out, there. And then, um, I’ll let you know what’s gonna (sic) happen from there, okay?

22. [22]
    After the applicant was transported to the Inala Police Station, Constable Bennet directed the applicant to an interview room. Before the record of interview took place Constable Bennet “cautioned” the applicant as follows:^[11]

Constable Bennet:  Do you remember your rights and cautions that we gave you roadside? 

Applicant: Yes.

23. [23]
    It is not entirely clear on the evidence, but it is reasonable to infer that the roadside caution was given about an hour earlier.^[12]

24. [24]
    Shortly after establishing the time was 9.37am the following exchange took place, between Constable Bennet and the applicant:^[13]

Constable Bennet: Okay. Mate, the reason that I’ve brought you in here is because I want to question you in relation to a number of the property items that were found in the vehicle. Okay? Um, are you happy to speak with me about them?

Applicant: Yep.

25. [25]
    The applicant was then questioned in detail by Constable Bennet about what the police found in the vehicle.^[14]  He denied knowing about the cannabis in the clip seal bag and about the white and green capsules but he made frank admission including relevantly:

1. That the clip seal bag which he had dropped in the driver’s footwell contained methylamphetamine and that the methylamphetamine belonged to him; and
2. That the ice pipe that was located in the backpack in the rear passenger seat belonged to him.

26. [26]
    After this questioning, the applicant was then asked about the contents of his mobile phone.  The initial part of this exchange is as follows: ^[15]

Constable Bennet:   Um, the next thing that I want to speak to you about mate, is obviously the contents of your mobile phone, okay? Um, you gave me the passcode to that phone when we were roadside, over at ah, Thrush Street, there.

Baker: Mm.

Constable Bennet:   Yep. Um, I’ve had a brief look at it since we’ve got back here.  I’m gonna (sic) be keeping that phone as well.

Applicant:   Yeah.

Constable Bennet:   Okay?  Um, I wanna (sic) ask you some questions now about some messages that I read on that phone, okay?

Applicant:  Mmhmm.

Constable Bennet:       Um, there’s some messages on there that I think relate to that amphetamine that you put down the driver’s side.  When did you buy that?

Applicant:   I haven’t bought [INDISTINCT].

Constable Bennet: It’s on tick?

Applicant:   [INDISTINCT].

Constable Bennet:  Yep.  When did you pick it up?

Applicant:   Um, this morning or something.

Constable Bennet:   Yep. Okay.  Who’d you pick it up from?

Applicant:   Um, I’m not comfortable telling you that.

Constable Bennet:   I’ve already seen it mate--

Applicant:  [INDISTINCT]--

Constable Bennet:   That’s fine.  If you don’t wanna (sic) say, I’m not gonna (sic) make you, okay?  Have you got drugs off that person in the past?

Applicant:   Only once.

Constable Bennet:   Only once.  Okay.  I saw some other messages on there from that person as well, where you’re sorta (sic) talking about some larger quantities of drugs and balls and half balls.

Applicant:  Yep.

Constable Bennet:   Is that the sort of stuff that you’re talking about?

Applicant:   Um, yeah, we were, we were talking about—

27. [27]
    Later, during the record of interview Constable Bennet made the following observation to the applicant:^[16]

“Yeah, okay.  No worries, man.  There’s a lot of ah, messages on there mate where you’re um, offering to ah, supply drugs, okay?  I hav-, haven’t gone through the phone thoroughly mate, um, and I will be doing that.  I’ll h-, hav- um, probably gonna (sic) release you on bail today, but I’m gonna (sic) have to speak to you again about it, okay? Um, obviously --"

28. [28]
    During the record of interview the applicant explained to Constable Bennet that he was supplying his habit as well as supplying others and then the following exchange took place:^[17]

Constable Bennet:   Yep.  Yep.  Mate, so I can, I’ll be straight with you.  I can blatantly see on your phone that you’re dealing.

Applicant:    Mmhmm.

Constable Bennet:   Yep.  Um, and I’m gonna (sic) ask you specific questions about it just cause I haven’t had time to go through it thoroughly alright?  Um, I don’t wanna (sic) keep you here all day mate.  I’m not gonna (sic) be an arsehole and drag you over the coals any more than I, well, I absolutely need to, okay?

Applicant:   Mmhmm.

Constable Bennet:   Um, that’s why I’m gonna (sic) release you on bail today.  Alright.  Are you on any sorta (sic) reporting commissions with--

Applicant:   Just [INDISTINCT]--

Constable Bennet:   Probations? Yeah.

Applicant:   I have to report once a, once a month.

Constable Bennet:   Okay.  So, they’re keeping an eye on ya (sic).

Applicant:   Yeah.

Constable Bennet:   Yep.

Applicant:   And they ring me up every, well, once a month, you know, normally happens.

Constable Bennet:   Okay.

Applicant:   [INDISTINCT].

Constable Bennet:   Alright.  So, you know anyone else that you’ve bought off in the past, mate?

Applicant:   No one else.

Constable Bennet:   I’m gonna (sic) look through your phone, so if there’s stuff on there, like, I’d appreciate if we have the conversation now.  It’s gonna (sic) save time the second time around, yeah?

Applicant:   [INDISTINCT].  No one really other than that.

Constable Bennet:   Sorry?

Applicant:   No one really other than that.

29. [29]
    These extracts show that the applicant made frank admissions about obtaining ‘meth’ and ‘green’ from a number of people.

30. [30]
    Subsequently, on 1 June 2022 , the applicant attended the Inala Police Station to speak to Constable Bennet about the contents of his mobile phone. Constable Bennet provided the applicant “with his rights and cautions”.^[18] But the applicant told him that he did not wish to answer questions in relation to the phone.

31. [31]
    Shortly afterwards, Constable Bennet issued the applicant with a notice to appear “for a number of offences.” ^[19]

Issue one: should the evidence from the mobile phone be excluded on the basis that the PIN code was obtained as a result of the unlawful questioning of the applicant

32. [32]
    There is no issue in this case that there was a proper basis for the applicant’s mobile phone to have been seized and searched under ss. 29 and 30 of the Police Powers and Responsibilities Act 2000 (“the PPRA”). In this case, the applicant possessed dangerous drugs (satisfying s 30 (ii)). The applicant’s phone became relevant to that charge in determining whom he obtained the drugs from. Constable Bennet’s evidence, which I accept, is that he thought the mobile phone may contain evidence of supplying a dangerous drug (that is evidence of a “seven year offence” under s. 30 (vi)).

33. [33]
    It is also not in issue the police did not have a warrant, nor did they try and obtain a warrant to access the applicant’s phone.  Section 154A of the PPRA provides the police with the power to make an application to a Magistrate requiring a person to provide access to a digital device at any time after the digital device had been lawfully seized under the PPRA.  Section 145A(5) provides a Magistrate may make such an order if satisfied there are reasonable grounds for suspecting that information from the digital device may be relevant evidence.

34. [34]
    The applicant submitted that Constable Bennet was required to caution the applicant under the relevant provisions of the PPRA before asking him for his PIN code. On the other hand, the Crown submitted that in failing to warn the applicant before obtaining the PIN code, Constable Bennet did not breach the PPRA because he was exercising his powers to search the mobile under ss 29 and 30 of the PPRA.

35. [35]
    For the reasons discussed under the heading “unlawfulness” below I accept the applicant’s submission and reject the Crown’s submission.

Unlawfulness

36. [36]
    Section 397 of the PPRA relevantly provides as follows:

“397 Right to remain silent not affected

Nothing in this chapter affects the right of a person to refuse to answer questions, unless required to answer the questions by or under an Act.”

37. [37]
    Part 3 of the PPRA is entitled “Safeguards ensuring rights of and fairness to persons questioned for indictable offences.” It commences at s 414. Section 415 provides that it applies to a person if the person is in the company of a police officer for the purpose of being questioned as a suspect about his or her involvement in the commission of an indictable offence.

38. [38]
    Section 415 (2) provides that Part 3 does not apply to a person only if the police officer is exercising any of the following powers:

1. power conferred under any Act or law to detain the person for a search;
2. power conferred under any Act or law to require the person to give information or answer questions.

39. [39]
    The rights provided by s 418 include a right for the applicant to communicate with a friend or relative and a lawyer before questioning starts and to be informed of that right. The section also provides for both or either of such persons to be present and that can be delayed to allow those persons to arrive.

40. [40]
    Section 431 provides for the cautioning of person as follows:

“431   Cautioning of persons

1. A police officer must, before a relevant person is questioned, caution the person in the way required under the responsibilities code.

2. The caution must be given in, or translated into, a language in which the person is able to communicate with reasonable fluency, but need not be given in writing unless the person can not hear adequately.

3. If the police officer reasonably suspects the person does not understand the caution, the officer may ask the person to explain the meaning of the caution in his or her own words.

4. If necessary, the police officer must further explain the caution.

5. This section does not apply if another Act requires the person to answer questions put by, or do things required by, the police officer.”

[Emphasis added]

41. [41]
    Schedule 9 of the Police Powers and Responsibilities Regulations 2012 (“the PPRR”) contains the Responsibilities Code. Part 5 of this Schedule is headed “Powers and responsibilities relating to investigations and questioning for indictable offences.”  Sections 22 and 23 of Schedule 9 provide relevantly as follows:

22 Asking persons to attend for questioning

‘I am (name and rank) of (name of police station or police establishment).

I wish to question you about (briefly describe offence).

Are you prepared to come with me to (place of questioning)?

Do you understand that you are not under arrest and you do not have to come with me?’.

‘I am (name and rank) of (name of police station or police establishment).

I wish to question you about (briefly describe offence).

Did you come here of your own free will?’.

‘Do you understand you are not under arrest?

Do you understand you are free to leave at any time unless you are arrested?’.

6. If necessary, the police officer must further explain the caution.

23 Right to communicate with friend, relative or lawyer

‘You have the right to telephone or speak to a friend or relative to inform that person where you are and to ask him or her to be present during questioning.

You also have the right to telephone or speak to a lawyer of your choice to inform the lawyer where you are and to arrange or attempt to arrange for the lawyer to be present during questioning.

If you want to telephone or speak to any of these people, questioning will be delayed for a reasonable time for that purpose.

Is there anyone you wish to telephone or speak to?’.

3. If necessary, the police officer must further explain the information.

2. a telephone directory for the region.

5. A police officer must not do or say anything with the intention of—

1. dissuading the relevant person from obtaining legal advice; or

42. [42]
    The relevant purposes of the PPRA are set out in s 5 as follows:

“5 Purposes of Act

…

43. [43]
    In R v Ford [2017] QSC 205 Flanagan J (as his Honour then was) made the following relevant observations about the PPPA (in a context not too dissimilar to the present facts):^[20]

“ Chapter 15 part 3 is entitled, “Safeguards ensuring rights of and fairness to persons questioned for indictable offences”. The provisions of part 3 include those which deal with the right of a relevant person to communicate with a friend, relative or lawyer as well as the requirement for a person to be cautioned as to their right to remain silent. Part 3 therefore seeks to achieve, in particular, the purpose of the Act identified in section 5(e).”

44. [44]
    The above observations and provisions of the PPRA and the Responsibilities Code need to be considered in light of the facts and circumstances in this case.

45. [45]
    It is uncontroversial that the applicant was not told prior to being asked to provide his PIN code that he did not have to do so.  Or that he was not cautioned or told of any of his rights under any of the above provisions.  In oral submissions, the Crown submitted that this was unnecessary because: at that point in time the police had a lawful right to search the phone and obtaining the PIN code was simply part of that; and it was only after that search was completed that the obligation to warn arose – and then the applicant “can refuse to speak to them about what’s on the phone.”^[21]

46. [46]
    I reject this submission because it overlooks three matters:

1. First:  the applicant was not compelled to provide his PIN code as part of the search; and
2. Secondly: the applicant could (at that point) have lawfully refused to provide his PIN code without having committed any offence pursuant to 205A of the Criminal Code;^[22] and
3. Thirdly: in this case, the PIN code was requested in circumstances where: dangerous drugs had just been located in the applicant’s vehicle; Constable Bennet was about to arrest the applicant for possessing those drugs; and the applicant was about to be transported to the police station for the purpose of participating in a record of interview. 

47. [47]
    In this case, the obtaining of the PIN code resulted in the mobile phone being searched. The search confirmed Constable Bennet’s suspicion about evidence of supplying dangerous drugs being found. This ultimately resulted in the applicant being questioned for significantly more serious offending than possession of dangerous drugs. In such circumstances, the applicant ought to have been cautioned prior to the request for his PIN code being made. The failure to do so is a clear breach of  s 431 (1) of the PPRA. I therefore find that the request for the PIN code was unlawful. This finding is consistent with the reasoning of Flanaghan J (as his Honour then was in ) in Ford.^[23]

48. [48]
    The next question that arises is whether this unlawfully obtained evidence ought to be excluded.  

Exclusion

49. [49]
    The Court has a discretion to exclude evidence, including confessional evidence that is obtained illegally or unfairly. The Court also has a discretion under s 130 of the Evidence Act 1977 (Qld) to exclude evidence if it would be unfair to the accused to admit it.

50. [50]
    The exercise of the discretion involves weighing the competing interests of the public need to bring to conviction those who commit criminal offences and the public interest in the protection of the individual from unlawful and unfair treatment.^[24]

51. [51]
    The relevant considerations were helpfully summarised by Davis J in R v Davis [2023] QSC at [73] as follows:

1. was the unlawful act inadvertent; or
2. was it a deliberate flouting of the law; and
3. was the misconduct serious; and
4. does the failure to comply with the law affect the cogency of the evidence; and
5. how serious is the offence charged; and
6. are the powers of the police deliberately limited by the legislation to protect the public.

52. [52]
    Constable Bennet joined the police force in 2017. At the time he gave evidence before me he had been elevated to a Senior Constable. He was not sure if he knew at the time that there was the capacity to obtain an order from a Magistrate to compel the applicant to provide his PIN code. He could not recall any formal training about that power being available to him. Constable Bennet’s evidence was that he had previously asked people [suspects] in the past if they would voluntarily provide their PIN code because of the difficulties and effort that is otherwise required to obtain the information.^[25] The relevant provisions of the PPRA and the Responsibilities Code are not recent. It is surprising that Constable Bennet was not familiar with them or to the extent he was, that he did not understand the requirements to apply them. Such powers are an officer’s tools of trade.

53. [53]
    Senior Constable Auld’s evidence was that it was his understanding that if you were asking someone for their PIN code you needed to make sure at the time that they understood whether they were compelled to answer the question (be it as a condition of a warrant or pursuant to an order made by a Magistrate following the seizure of a mobile phone). He accepted that where there is no power to compel it was important that the person asked to provide a PIN code does so voluntarily. That is, understands there is a choice. Consistently with this, Senior Constable Auld’s practice was that if he was asking for a PIN code in circumstances where he was not exercising a compelled power, he would tell the person that they did not have to tell him their PIN code.

54. [54]
    Constable Bennet’s evidence does not adequately or sufficiently explain why he was not cautioned prior to the PIN being requested. His evidence was unfortunately vague about what he knew and did not know about the PPRA and Regulations. He took shortcuts. These shortcuts resulted in the applicant not being afforded his rights. Those rights included the right to silence in the face of police questioning under the PPPA and Responsibilities Code. Provisions that were enacted not only to provide police with powers necessary for modern policing and law enforcement but also to ensure fairness and to protect the rights of people interacting with police exercising their powers.^[26]

55. [55]
    In oral submissions before me, the Crown submitted that Mr Bennett made frank concessions: for example, that he really should have warned the applicant prior to asking for his PIN. I accept this. I also accept the Crown’s oral submission that Constable Bennet seemed “a bit confused” about the procedure and policies around requesting a PIN code. The following observations made by the experienced Crown Prosecutor well encapsulate the evidence of the two officers on this issue:^[27]

“And he was unaware, it seems, mainly because the training provided to the officer is curious in its lack of training about what powers he actually had. Officer Auld was much more across the powers that he had and the 25 procedures, but it seems they didn’t discuss it, and he didn’t ask advice from Officer Auld. They teach each other and Officer Bennet thought he knew what to do.”

56. [56]
    Drugs are a serious problem in our community and I recognise that the evidence obtained from the phone is cogent. But there is the public interest in denouncing the conduct of police in failing to make themselves educated about the basic rights to be afforded to those such as the applicant under the PPRA and Responsibilities Code. That consideration outweighs the interest of the public in seeing the applicant prosecuted for what are obviously serious charges.^[28]

57. [57]
    I therefore find that the evidence obtained from the mobile phone ought to be excluded.

58. [58]
    In case this finding is wrong, it is necessary to consider issue two.

Issue two: Should the evidence from the mobile phone be excluded on the basis that it was not voluntarily obtained and its admission is therefore unfair to the applicant

59. [59]
    Constable Bennet’s evidence was that he did not have to caution the applicant because the applicant provided his PIN code voluntarily.^[29] This “voluntariness”, I assume, was underpinned by the notion that the applicant was asked, did not say no, and acceded to his request. I reject this contention for two reasons:

1. First, and as I have determined at paragraph 47 above, I am satisfied that Constable Bennet was required to caution the applicant in this case; and
2. Secondly, Constable Bennet’s evidence that the PIN code was given voluntarily is a legal conclusion not supported by the evidence in this case.

60. [60]
    The Crown’s submission that the applicant voluntarily provided the PIN code to police was underpinned by the following evidence:

1. The applicant was calm and confident when speaking to police and so not overborne;
2. The applicant freely engaged with police following the intercept; and
3. In the subsequent interview, the applicant clearly demonstrated that he understood that he did not have to answer questions if he did not want to.

61. [61]
    I accept these matters as general propositions, but the Crown’s submission overlooks that the applicant’s vehicle had just been searched and drugs located, and he was not told that he did not have to answer questions relating to his offending or incriminating him, which included providing details of his PIN code. That is, the applicant was not properly informed as he should have been.

62. [62]
    Further, whilst the applicant did not give evidence before me, it is reasonable to infer, given that drugs had just been located in the vehicle and that the PIN code was requested without any cautions being given or rights explained (even the simple right that the applicant did not have to answer the question), that the applicant may have believed that he was obliged or required to provide his PIN code.

63. [63]
    Overall, the Crown has failed to satisfy me that the response by the applicant to the request for his PIN code was a voluntary one. I therefore find that the provision of the PIN code was not voluntarily obtained and on that basis ought to be excluded.

64. [64]
    But if I am wrong, I am otherwise satisfied that the evidence elicited from the mobile phone ought to be excluded under s 130 of the Evidence Act 1977 or pursuant to the common law discretion to exclude evidence unlawfully or unfairly obtained for five reasons:

1. First: the applicant was in the company of police officers as he had been detained as an occupant of a vehicle for the purposes of a search;
2. Secondly: police did not ask for the PIN code of the phone until after the search had been concluded;
3. Thirdly: all the dangerous drugs the subject of the charges had already been located;
4. Fourthly: the applicant was clearly a suspect in relation to the commission of an indictable offence; and
5. Fifthly: the only purpose of asking the applicant for the PIN code was to investigate if there was evidence in relation to the commission of drug offences on the phone.

65. [65]
    In these circumstances, the applicant ought to have been cautioned prior to asking for his PIN code and told that he was not obliged to provide this information. The questioning, in my view, was both unlawful and unfair to the applicant.

66. [66]
    I therefore find that the evidence obtained from the mobile phone ought to be excluded on this basis too.

Issue three: Should all or part of the record of interview be excluded on the basis that its admission is unfair to the applicant

67. [67]
    Whilst the applicant was eventually cautioned at the roadside, it is instructive to observe that these cautions did not comply in full with the Responsibilities Code. For example:

1. Constable Bennet conflated s 23 of that Code by failing to distinguish between the applicant’s right to telephone or speak to a friend or relative to inform them where he was and to ask them to be present during questioning and the separate right to telephone or speak to a lawyer and have that person present during questioning. His evidence was that he was not familiar with the distinction; ^[30]
2. After giving the caution (as set out at the end of s 23), Constable Bennet did not ask the applicant if there was anyone he wished to telephone or speak to. This, perhaps, is not surprising given his evidence was that he gave the caution from memory.

68. [68]
    The applicant submitted, and I accept, that once the applicant was at the police station the following nine circumstances existed prior to the commencement of the formal record of interview:^[31]

1. First: the questioning took place at a time after the applicant had been detained for a search;
2. Second: the applicant was told he was under arrest for possessing dangerous drugs;
3. Third: the applicant was cautioned at the time of the arrest and in a general way informed of a right to silence. But he had already provided his PIN code and made some statements about possession of drugs whilst not under caution;
4. Fourth: there was a one-hour delay between the roadside caution and the commencement of the interview;
5. Fifth: at the commencement of the interview, the applicant was told he was to be asked questions about the property items found in his vehicle. He was still not told that he was under suspicion and to be questioned about the supply or trafficking in dangerous drugs;
6. Sixth: the cautions were not repeated at the commencement of the interview;
7. Seventh: the roadside caution did not make it clear that a right to silence existed for each and every question, rather it was a global ‘are you willing to talk to me?’;
8. Eighth: the caution in respect of the right to a lawyer was not provided as set out in the Responsibilities Code; and
9. Ninth: the statements against interests made by the applicant were made after he was told what had been located on his mobile phone when that evidence had been unlawfully or unfairly obtained.

69. [69]
    The starting point in considering whether the record of interview ought to be excluded on the grounds of unfairness is that the second part of it is clearly infected by my earlier findings that the evidence of what was on the phone was obtained unlawfully and was not voluntarily given and ought to be excluded on either basis. It follows that the part of the record of interview where the applicant is questioned about what is on his phone ought to be excluded because it would obviously be unfair to admit it.

70. [70]
    The question is, should all of the record of interview be excluded? The Crown submitted it should not.^[32] But, in my view, it would be unfair to admit any of the record of interview in this case because the applicant ought to have been cautioned (again) in compliance with the PPRA and the Responsibilities Code, at the outset of the record of interview, for the following reasons:

1. First: in light of the matters set out in paragraph 68 above; and
2. Secondly: the purpose of the provisions contained within the PPRA and the Responsibilities Code are to ensure that a suspect is aware of and in a position to exercise the right to silence in the face of police questioning.^[33] Merely asking the applicant sometime later if he remembered the rights and cautions previously provided to him does not sufficiently address this purpose, particularly when those rights and cautions were incomplete to start with. Most crucially, the applicant was not asked at the police station if he would like to make a phone call or have a support person or lawyer present. This oversight becomes starker when considered in the context of what the applicant was told at the end of the roadside caution as follows:^[34]

“I’m not gonna (sic) ask any question, okay? We’re gonna (sic) go back to the station, um, sort it out, there. And then, um, I’ll let you know what’s gonna (sic) happen from there, okay.”

3. Thirdly: it was unfair of Constable Bennet to question the applicant about what was located on his phone during the course of the record of interview without telling the applicant at the outset that he was to be questioned on this issue as well as about the drugs that were located in his car; and

4. Fourthly: the questioning about what was on the applicant’s phone took place in circumstances where the applicant was not separately told of his rights in contemplation of that offending.

71. [71]
    Again, while there is a public need to bring a conviction to those who commit serious criminal offences – such as drug trafficking and drug possession – there is a competing public interest in the protection of the individual from unfair treatment.

72. [72]
    I resolve these competing interests in favour of the applicant in this case. I find that the admission of the record of interview would be unfair.

Orders

73. [73]
    It is ordered:

The following evidence is excluded from the trial of the applicant:

1. The contents of the blue LG branded mobile phone obtained by the police during a search of vehicle registration number 180XNR; and
2. The record of interview conducted by police and the applicant on 15 May 2022.