R v Humphreys

In this case the applicant had been asked questions during the execution of a search warrant which included a question about the access information to an electronic device. The applicant provided the access information. This allowed extraction of unencrypted data from the electronic device (the “digital evidence”). Whilst the police officer had authority to seize the electronic device, they did not have authority to compel the applicant to provide the access information. The applicant sought to exclude the digital evidence on the basis that the police officer had failed to inform her that any questioning that occurred during the execution of the search warrant would be delayed for a reasonable time to allow her to speak with a friend, relative or lawyer in accordance with Police Powers and Responsibilities Regulation 2012 Sch 9 s 23(1) (the “Responsibilities Code”). Justice Burns agreed. The non-compliance with the Responsibilities Code went to the “heart of the applicant’s right to remain silent”, which warranted discretionary exclusion of the digital evidence in the circumstances of this case.

Burns J

4 November 2022

Background

A police officer had obtained a search warrant which authorised seizure of electronic devices, but it did not authorise the police officer to compel the applicant to provide “access information” in relation to any electronic devices which might have been located and seized at the premises named on the warrant (e.g. a personal identification number (“PIN”) which would enable unencrypted extraction of the data contained on an electronic device). [3]. The warrant holder informed the applicant that she had the right to communicate with a friend, relative or lawyer before being questioned, but he did not inform the applicant that questioning would be delayed for a reasonable time to allow her to speak with a friend, relative or lawyer if she wished to do so in accordance with Police Powers and Responsibilities Reg 2012 Sch 9 s 23(1) (the “Responsibilities Code”). [6], [17]–[21].

One of the police officers assisting with the execution of the search warrant had located a mobile phone. [10]. The police officer held the phone towards the applicant and asked: “Have you got a PIN for the phone?”. Before the applicant answered, a more senior police officer stated: “Just tell us what the PIN number is”. [10]. The applicant replied: “I use my thumb”. [10]. The police officer then held the mobile phone towards the applicant and she “unlocked” the device. [10]. The senior police officer later asked the applicant for the PIN which she provided. [10]. The mobile phone was seized under the search warrant and unencrypted data was extracted from the device (the “digital evidence”). [10]. The applicant was later charged with an indictable offence after participating in a recorded interview. [14].

The applicant sought a pretrial ruling to exclude the following evidence: a recorded conversation with police during the execution of the search warrant (the “field interview”); the digital evidence; and the record of interview (together, the “impugned evidence”). [2]. The applicant identified two bases for excluding the impugned evidence: the warrant holder did not comply with the Responsibilities Code when informing the applicant that she had a right to communicate with a friend, relative or lawyer; and the digital evidence was obtained unlawfully and/or unfairly. [15]. The prosecution conceded that if the digital evidence was excluded the record of interview must also be excluded as the questioning was, at least for the most part, directed towards the digital evidence. [14]–[15], [33].

Whether the impugned evidence should be excluded

Justice Burns accepted that the warrant holder did not comply with the Responsibilities Code when informing the applicant of her right to communicate with a friend, relative or lawyer, which effected all three categories of the impugned evidence. [18]–[21]. Justice Burns also observed that there was nothing recorded in the “Statement to Occupier” provided to the applicant which, in his Honour’s view, cured the non-compliance, nor explained that the applicant was at liberty to remain silent when asked questions including in relation to access information for electronic devices. [26]. The question, which Burns J considered was more consistent with a “demand”, must be viewed in context with the warrant holder having previously told the applicant that she must not obstruct a police officer. [27]–[28]. This led to a mistaken belief that the applicant “thought [she] had to” comply. [27]–[28].

Justice Burns observed that, when viewed in isolation, there was not necessarily anything unlawful or unfair about a police officer asking a person of interest for access information where a police officer does not have authority to compel a person to provide access information. [29]. However, in his Honour’s view, when the request was considered in combination with the non-compliance with the Responsibilities Code which went to the “heart of the applicant’s right to remain silent”, the discretionary balance tipped in favour of exclusion. [30]–[31]. The non-compliance created a real disadvantage and it would work an unfairness if the digital evidence was led against the applicant. [31]. It followed that the digital evidence and the record of interview should be excluded. [46]. It also followed that the field interview should be excluded, as this also occurred after the relevant non-compliance. [46].

Disposition

In the result, the pretrial application was allowed. [46].

D Kerr